Ortiz v. Reynolds et al

Filing 66

ORDER signed by Chief Judge Morrison C. England, Jr on 3/27/13 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 1/22/13 63 are ADOPTED IN FULL; Defendant's 9/29/12 MOTION to Strike 60 is GRANTED. Defendant's 8/3/12 MOTION for Su mmary Judgment 51 is GRANTED IN PART, as to Plaintiff's claims that Defendant threatened to discontinue his pain medication on 9/25/08 and 12/1/09 in violation of the Eighth Amendment, and otherwise DENIED. Defendant is granted leave to f ile a second Motion for Summary Judgment within 30 days of the date of this Order addressing the remaining allegations identified in the Magistrate Judge's Findings and Recommendations. ; granting in part and denying in part 51 Motion for Summary Judgment ; granting 60 Motion ; adopting (Mena-Sanchez, 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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JOSE B. ORTIZ,
Plaintiff,

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No. 2:10-cv-1380 MCE EFB P

vs.

ORDER

J. REYNOLDS, et al.,
Defendants.
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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 January 22, 2013, the Magistrate Judge filed findings and recommendations

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herein (ECF No. 63) which were served on all parties and which contained notice to all parties

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

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Defendant Miranda has filed objections to the findings and recommendations.

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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 de novo review of this case. Having carefully reviewed the

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entire file, the Court finds the findings and recommendations to be supported by the record and
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by proper analysis.
While defendant contends that the Court’s screening orders found that only an Eighth

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Amendment claim was cognizable against defendant Miranda, the Court has reviewed those

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orders and concludes that no such limitation is contained therein. (See ECF Nos. 5, 23.)

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Plaintiff’s complaints, both original and amended, have consistently alleged retaliatory conduct

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by Defendant Miranda. (See ECF No. 1 at 4; ECF No. 21 at 9.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 22, 2013 (ECF No. 63) are

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ADOPTED IN FULL.

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2. Defendant’s September 26, 2012 motion to strike (ECF No. 60) is GRANTED.

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3. Defendant’s August 3, 2012 motion for summary judgment (ECF No. 51) is

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GRANTED IN PART, as to Plaintiff’s claims that Defendant threatened to discontinue his pain

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medication on September 25, 2008 and December 1, 2009 in violation of the Eighth

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Amendment, and otherwise DENIED.

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4. Defendant is granted leave to file a second motion for summary judgment

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within 30 days of the date of this Order addressing the remaining allegations identified in the

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Magistrate Judge’s findings and recommendations.

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DATED: March 27, 2013

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__________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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