Ware v. McDonald et al

Filing 117

ORDER signed by District Judge Troy L. Nunley on 3/31/2017 ORDERING that the 114 findings and recommendations are ADOPTED in full. Plaintiff's 97 motion for partial summary judgment is DENIED. Defendants' 96 motion for summary judgment is GRANTED IN PART and DENIED IN PART. Defendants Green, Tancreto, Hanks and Fackrell are DISMISSED from this action with prejudice. This matter is REMANDED to the Magistrate Judge for further scheduling. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN WARE, 12 Plaintiff, 13 14 No. 2:12-cv-1505-TLN-KJN P v. ORDER M. McDONALD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 8, 2017, the magistrate judge filed findings and recommendations herein, 20 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Plaintiff has filed 23 objections to the findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 Court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 /// 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed February 8, 2017, are adopted in full; 3 2. Plaintiff’s motion for partial summary judgment (ECF No. 97) is denied; 4 3. Defendants’ motion for summary judgment (ECF No. 96) is granted in part and denied 5 in part, as follows: a. All Defendants are entitled to summary judgment on Plaintiff’s claim that 6 7 Defendants failed to protect him in violation of his Eighth Amendment; 8 9 b. Defendants Tancreto and Green are granted summary judgment on Plaintiff’s excessive force claims; and 10 11 12 13 14 15 c. The motion for summary judgment by Defendants Holt, Giessner and Glover, on Plaintiff’s excessive force claims are denied; 4. Defendants Green, Tancreto, Hanks and Fackrell are dismissed from this action with prejudice; and 5. This matter is remanded to the Magistrate Judge for further scheduling. Dated: March 31, 2017 16 17 18 19 Troy L. Nunley United States District Judge 20 21 22 23 24 25 26 27 28 2

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