Foster v. Statti et al

Filing 77

ORDER signed by District Judge Troy L. Nunley on 3/6/2014 ORDERING that the 72 Findings and Recommendations are ADOPTED in full. Defendants' 53 motion to dismiss for failure to exhaust administrative remedies is DENIED. Defendants' 53 motion for summary judgment is DENIED. Plaintiff's 62 cross-motion for summary judgment is GRANTED IN PART, in the form of an order pursuant to Fed. R. Civ. P. 56(g) that the objective component of his Eighth Amendment claim (the seriousness of the deprivation) is not genuinely in dispute and shall be treated as established in plaintiff's favor. Plaintiff's 62 cross-motion for summary judgment is DENIED in all other respects. This matter shall proceed to trial against defendants Wright, Kraft, Davey and Statti on plaintiff's Eighth Amendment claims. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD FOSTER,

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No. 2:10-cv-0929 TLN AC P

Plaintiff,

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v.

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P. STATTI, et al.,

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ORDER

Defendants.

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

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

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

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On September 23, 2013, the magistrate judge filed findings and recommendations herein

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

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the findings and recommendations were to be filed within twenty-one days. Defendants were

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granted an extension of time to file objections to the findings and recommendations and have

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done so.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 23, 2013 are adopted in full;

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2. Defendants’ motion to dismiss for failure to exhaust administrative remedies (ECF No.

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53) is denied;

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3. Defendants’ motion for summary judgment (ECF No. 53) is denied;

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4. Plaintiff’s cross-motion for summary judgment (ECF No. 62) is granted in part, in the

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form of an order pursuant to Fed. R. Civ. P. 56(g) that the objective component of his Eighth

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Amendment claim (the seriousness of the deprivation) is not genuinely in dispute and shall be

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treated as established in plaintiff’s favor;

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5. Plaintiff’s cross-motion for summary judgment (ECF No. 62) is denied in all other
respects; and
6. This matter shall proceed to trial against defendants Wright, Kraft, Davey and Statti on

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plaintiff’s Eighth Amendment claims.

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Dated: March 6, 2014

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Troy L. Nunley
United States District Judge

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/fost0929.806

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