Barnett v. Fisher, Jr.

Filing 49

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELBERT BARNETT, 12 Plaintiff, 13 v. 14 R. FISHER, JR., 15 No. 1:17-cv-01361-DAD-JLT (PC) Defendant. 16 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) 17 18 19 Plaintiff Delbert Barnett is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action under 42 U.S.C. § 1983. Plaintiff’s sole claim is against defendant Fisher for 21 deliberate indifference to plaintiff’s safety in violation of the Eighth Amendment. (See Doc. No. 22 16.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 23 § 636(b)(1)(B) and Local Rule 302. 24 On June 22, 2020, plaintiff filed a motion for summary judgment. (Doc. No. 42.) 25 Defendant filed an opposition to that motion on July 3, 2020. (Doc. No. 45.) Plaintiff did not file 26 a reply. On June 26, 2020, defendant filed a cross-motion for summary judgment. (Doc. No. 43.) 27 Plaintiff filed an opposition on July 7, 2020, and defendant filed a reply thereto on July 13, 2020. 28 (Doc. Nos. 46, 47.) 1 1 On December 7, 2020, the assigned magistrate judge issued findings and 2 recommendations, recommending that defendant’s motion for summary judgment be granted and 3 that plaintiff’s motion be denied. (Doc. No. 48.) The magistrate judge found that, viewing the 4 facts in the light most favorable to plaintiff, plaintiff had failed to show that defendant violated 5 his Eighth Amendment rights. (Id. at 6–9.) Specifically, the magistrate judge concluded that 6 under the undisputed evidence before the court on summary judgment plaintiff had failed to show 7 that he was at a substantial risk of harm on the date he was attacked in the prison dining hall and 8 also failed to show that defendant Warden Fisher was aware of any such risk posed to plaintiff. 9 (Id. at 6, 8.) The findings and recommendations were served on all parties and provided notice 10 that any objections thereto were to be filed within 21 days. (Id. at 9.) Neither party has filed any 11 objections to the pending findings and recommendations and the time to do so has passed. 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 13 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 14 and recommendations to be supported by the record and proper analysis. 15 Accordingly, 16 1. 17 The findings and recommendations issued on December 7, 2020 (Doc. No. 48) are adopted in full; 18 2. Plaintiff’s motion for summary judgment (Doc. No. 42) is denied; 19 3. Defendant’s motion for summary judgment (Doc. No. 43) is granted; and, 20 4. The Clerk of the Court is directed to enter judgment and close this case. 21 22 IT IS SO ORDERED. Dated: February 12, 2021 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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