Perez v. Sisto et al

Filing 88

ORDER ADOPTING 78 FINDINGS and RECOMMENDATIONS, in full, signed by District Judge Kimberly J. Mueller on 3/21/2011. Defendants' 61 Motion for Summary Judgment is GRANTED in part and DENIED in part. Motion is DENIED as to defendant Williams a s to plaintiffs claim that she violated 8th Amendment when she arguably helped precipitate an inmate attack upon Mr. Perez. But GRANTED as to any other claim against defendant Williams. Motion is GRANTED as to defendant Lozano. It is DENIED as to Mr. Perez's claim of excessive force during his escort against defendants Cantu and Cortez. And it is GRANTED as to any other claim against defendant Cortez. This matter shall proceed to Trial on only failure to protect claim against defendant Williams and the excessive force claim against defendants Cantu and Cortez. (Marciel, M)

-GGH (PC) Perez v. Lozano, et al

Doc. 88

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. D. K. SISTO, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 21, 2010, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Defendants were granted an extension of time to file objections to the findings and recommendations and have done so. Plaintiff has replied to those objections. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the ///// 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE MANUEL PEREZ, Plaintiff, No. CIV S-06-2090 KJM GGH P

ORDER

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entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed July 21, 2010, are adopted in full, with the exception of page 11, note 7, and page 31, lines 6 through 9 (from "Although plaintiff . . ." through "minimal injuries."). 2. Defendants' motion for summary judgment, filed on October 7, 2009 (Docket No. 61), is denied in part and granted in part, as follows: a. As to defendant Williams, DENIED as to plaintiff's claim that Williams violated the Eighth Amendment when she arguably helped precipitate an inmate attack upon plaintiff by allegedly yelling in full hearing of other inmates that plaintiff was trying to interfere with their housing, but GRANTED as to any other claim against defendant Williams; b. GRANTED as to defendant Lozano; c. DENIED as to plaintiff's claim of excessive force during his escort against defendants Cantu and Cortez; and d. GRANTED as to any other claim against defendant Cortez. 3. This matter is to proceed to trial, as identified above, on only the failure to protect claim against defendant Williams and the excessive force claim against defendants Cantu and Cortez. DATED: March 21, 2011. UNITED STATES DISTRICT JUDGE
/pere2090.806

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