Robertson v. Garcia et al.

Filing 57

ORDER ADOPTING 56 Findings and Recommendations signed by District Judge Dale A. Drozd on 06/14/2022. B. Jones terminated from action.(Flores, E)

Case 1:17-cv-01022-DAD-BAM Document 57 Filed 06/14/22 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAYNE JEROME ROBERTSON,

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No. 1:17-cv-01022-DAD-BAM (PC)

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

D. GARCIA, et al.,
(Doc. Nos. 36, 56)
Defendants.

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Plaintiff Wayne Jerome Robertson is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 9, 2022, the assigned magistrate judge issued findings and recommendations,

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recommending the following: (1) that defendants’ motion for partial summary judgment (Doc.

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No. 36) be granted; (2) that defendant Jones be dismissed from this action due to plaintiff’s

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failure to exhaust his administrative remedies as to his claims involving that defendant prior to

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filing suit; (3) that plaintiff’s claims against defendant Garcia alleging the use of excessive force,

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other than the use of OC spray, be dismissed also due to plaintiff’s failure to exhaust his

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administrative remedies as to those claims prior to filing suit; and (4) that this action proceed only

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on plaintiff’s claim brought against defendant Garcia for excessive use of force in violation of the
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Case 1:17-cv-01022-DAD-BAM Document 57 Filed 06/14/22 Page 2 of 2
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Eighth Amendment for spraying plaintiff with OC spray on January 24, 2017. (Doc. No. 56.)

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Those findings and recommendations were served on the parties and contained notice that any

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objections thereto were to be filed within fourteen (14) days after service. (Id. at 12–13.) To

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date, no objections have been filed with the court and the time in which to do so has since passed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the court finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly,

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1.

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The findings and recommendations issued on May 9, 2022 (Doc. No. 56) are
adopted;

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2.

Defendants’ motion for partial summary judgment (Doc. No. 36) is granted;

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3.

Defendant Jones is dismissed from this action due to plaintiff’s failure to exhaust

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his administrative remedies as to his claims involving that defendant prior to filing

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suit;

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4.

Plaintiff’s claims against defendant Garcia regarding the use of excessive force,

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other than the use of OC spray, are dismissed due to plaintiff’s failure to exhaust

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his administrative remedies as to those claims prior to filing suit;

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5.

This action shall proceed only on plaintiff’s claim against defendant Garcia for

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excessive force in violation of the Eighth Amendment for spraying plaintiff with

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OC spray on January 24, 2017; and

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6.

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This matter is referred back to the assigned magistrate judge for further
proceedings consistent with this order.

IT IS SO ORDERED.
Dated:

June 14, 2022
UNITED STATES DISTRICT JUDGE

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