(PC) Patrick M. McMillan v. Delgado et al

Filing 48

ORDER ADOPTING 46 Findings and Recommendations; ORDER GRANTING Defendants' Motion for Summary Judgment 38 , signed by District Judge Dale A. Drozd on 11/17/2021. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK M. McMILLIAN,

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Plaintiff,
v.
O. DELGADO, et.al.,
Defendants.

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No.: 1:19-cv-00444-NONE-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
(Doc. Nos. 44, 46)

Plaintiff Patrick M. McMillain is appearing pro se in this civil rights action brought pursuant to

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42 U.S.C. § 1983. Plaintiff, who was at the time of the events in question an inmate at the California

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Correctional Institution in Tehachapi, California, incurred serious injuries when he was struck twice

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by “less than lethal” riot control weapons during a prison riot. He advances Eighth amendment

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excessive force and state law negligence claims in this lawsuit. (Doc. No. 32.) This matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 29, 2021, the assigned magistrate judge issued findings and recommendations

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recommending that defendants be granted summary judgment in their favor, finding that the

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undisputed facts on summary judgment demonstrated that defendants did not use excessive force

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during the prison riot and acted reasonably in responding to that riot. (Doc. No. 46.) The findings and

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recommendations were served on the parties and contained notice that objections were due within

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twenty-one days. (Id. at 18.) No objections were filed 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), the court has conducted a de

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

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

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Accordingly, the court orders that:

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1. The findings and recommendations filed on September 9, 2021, (Doc. No. 44), are adopted

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in full;

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2. Defendants’ motion for summary judgment (Doc. No. 38) is GRANTED; and

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3. The Clerk of the Court is directed to enter judgment in favor of defendants close this case.

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IT IS SO ORDERED.
Dated:

November 17, 2021
UNITED STATES DISTRICT JUDGE

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