(PC) Howell v. Burns et al
Filing
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ORDER ADOPTING IN FULL 50 Findings and Recommendations signed by District Judge Jennifer L. Thurston on 1/10/2022. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KAREEM J. HOWELL,
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Plaintiff,
Case No.: 1:19-cv-00715-JLT-SAB (PC)
ORDER ADOPTING IN FULL FINDINGS
AND RECOMMENDATIONS
v.
MR. J. BURNS, et al.,
Defendants.
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Kareem J. Howell is a state inmate proceeding in a civil-rights action filed under 42
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U.S.C. § 1983 against Defendants Babb, Burns, and Tumacder. On October 26, 2021, the
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assigned magistrate judge issued findings and recommendations, recommending that the Court
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grant Defendants’ motion for summary judgment and that the Clerk of Court enter judgment in
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favor of Defendants. (Doc. No. 50.) The findings and recommendations were served on the
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parties and contained notice that objections were due within thirty days. (Id. at 16.) No
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objections were filed and the time to do so has expired.
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the
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Court has conducted a de novo review of this case. It appears the findings and recommendations
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failed to consider Plaintiff’s complaint, which was signed under penalty of perjury, as opposing
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evidence. The Court has reviewed the sworn factual statements—as opposed to legal or medical
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conclusions—made in the complaint and has considered it as evidence opposing the motion but,
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even still, reaches the same conclusions as those set forth in the findings and recommendations.
As to Plaintiff’s Eighth Amendment claim, Plaintiff fails to demonstrate a triable issue of
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fact that being placed in a cell with mesh windows caused him harm. Defendants provided
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evidence from an expert witness who asserted that the placement did not cause him harm. In
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addition, the evidence demonstrates that Plaintiff was offered extensive mental health treatment
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during the period that he was placed in the cell with the wire mesh windows. Plaintiff has
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submitted no admissible evidence to the contrary.
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As to Plaintiff’s First Amendment claim, Defendants have established they had a
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legitimate penological interest in moving Plaintiff to a prison cell with mesh windows because it
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is undisputed that Plaintiff had repeatedly broken non-mesh windows. Accordingly, the Court
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orders that:
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1. The findings and recommendations’ (Doc. 50) are adopted in full;
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2. Defendants’ motion for summary judgment (Doc. 36) is granted; and
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3. The Clerk of Court is directed to enter judgment in favor of Defendants.
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IT IS SO ORDERED.
Dated:
January 10, 2022
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