Hunt v. Fields

Filing 61

ORDER signed by Judge Kimberly J. Mueller on 10/5/2012 ORDERING The court's order 59 is VACATED; the findings and recommendations 58 are ADOPTED in FULL; Plaintiff's 35 motion for summary judgment is DENIED; Defendant's 45 mot ion to dismiss and for summary judgment is GRANTED in PART, and DENIED in PART as outlined in the F & R's, and leaving at issue plaintiff's retaliation claim in connection with the 8/28/2008 work re-assignment; and this case is REFERRED back to the magistrate judge for setting a further schedule for trial on the remaining retaliation issue. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL A. HUNT,
Plaintiff,

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No. 2: 09-cv-3525 KJM GGH P

Defendant.

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ORDER

vs.
D. FIELDS,

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 10, 2012, the magistrate judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen days. On

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September 27, 2012, after receiving no objections to the findings and recommendations, the

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court adopted them, denying plaintiff’s motion for summary judgment and denying in part and

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granting in part defendant’s motion for summary judgment.

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On September 28, 2012, the court received plaintiff’s objections to the findings
and recommendations, which were constructively filed on Sunday, September 23, 2012. See
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Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988). Because plaintiff’s objections were

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constructively filed within 14 days after the findings and recommendations were filed, the court

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will vacate the September 27, 2012 order and consider the merits of plaintiff’s objections.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a renewed de novo review of this case. Having carefully reviewed

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the file, the court finds the findings and recommendations to be supported by the record and by

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proper analysis.1 Accordingly, IT IS HEREBY ORDERED that:

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1. The court’s September 27, 2012 order (Doc. No. 59) is vacated;

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2 The findings and recommendations filed September 10, 2012 are adopted in

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full;

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3. Plaintiff’s motion for summary judgment (Doc. No. 35) is denied;

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4. Defendant’s motion to dismiss and for summary judgment (Doc. No. 45) is

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granted in part, and denied in part, as outlined in the findings and recommendations, and leaving

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at issue plaintiff’s retaliation claim in connection with the August 28, 2008 work re-assignment;

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and
5. This case is referred back to the magistrate judge for setting a further schedule

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for trial on the remaining retaliation issue.

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DATED: October 5, 2012.

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UNITED STATES DISTRICT JUDGE

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The court notes the inadvertent omission of the word “not” on page 12, line 8.
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