Barnett v. Fisher, Jr.
Filing
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ORDER ADOPTING 48 Findings and Recommendations, GRANTING Defendant's 43 Motion for Summary Judgment, and Plaintiff's DENYING 42 Motion for Summary Judgment, signed by District Judge Dale A. Drozd on 2/12/2021. CASE CLOSED. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DELBERT BARNETT,
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Plaintiff,
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v.
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R. FISHER, JR.,
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No. 1:17-cv-01361-DAD-JLT (PC)
Defendant.
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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
(Doc. Nos. 42, 43, 48)
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Plaintiff Delbert Barnett is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action under 42 U.S.C. § 1983. Plaintiff’s sole claim is against defendant Fisher for
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deliberate indifference to plaintiff’s safety in violation of the Eighth Amendment. (See Doc. No.
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16.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.
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§ 636(b)(1)(B) and Local Rule 302.
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On June 22, 2020, plaintiff filed a motion for summary judgment. (Doc. No. 42.)
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Defendant filed an opposition to that motion on July 3, 2020. (Doc. No. 45.) Plaintiff did not file
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a reply. On June 26, 2020, defendant filed a cross-motion for summary judgment. (Doc. No. 43.)
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Plaintiff filed an opposition on July 7, 2020, and defendant filed a reply thereto on July 13, 2020.
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(Doc. Nos. 46, 47.)
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On December 7, 2020, the assigned magistrate judge issued findings and
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recommendations, recommending that defendant’s motion for summary judgment be granted and
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that plaintiff’s motion be denied. (Doc. No. 48.) The magistrate judge found that, viewing the
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facts in the light most favorable to plaintiff, plaintiff had failed to show that defendant violated
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his Eighth Amendment rights. (Id. at 6–9.) Specifically, the magistrate judge concluded that
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under the undisputed evidence before the court on summary judgment plaintiff had failed to show
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that he was at a substantial risk of harm on the date he was attacked in the prison dining hall and
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also failed to show that defendant Warden Fisher was aware of any such risk posed to plaintiff.
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(Id. at 6, 8.) The findings and recommendations were served on all parties and provided notice
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that any objections thereto were to be filed within 21 days. (Id. at 9.) Neither party has filed any
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objections to the pending findings and recommendations and the time to do so has 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 proper analysis.
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Accordingly,
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1.
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The findings and recommendations issued on December 7, 2020 (Doc. No. 48) are
adopted in full;
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2.
Plaintiff’s motion for summary judgment (Doc. No. 42) is denied;
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3.
Defendant’s motion for summary judgment (Doc. No. 43) is granted; and,
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4.
The Clerk of the Court is directed to enter judgment and close this case.
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IT IS SO ORDERED.
Dated:
February 12, 2021
UNITED STATES DISTRICT JUDGE
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