Harvey v. Barbour

Filing 51

ORDER signed by District Judge Kimberly J. Mueller on 3/21/2017 ADOPTING IN FULL 50 Findings and Recommendations; GRANTING 42 Motion for Partial Summary Judgment; DISMISSING the plaintiff's claim for deliberate indifference. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH HARVEY,

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No. 2:12-cv-02029 KJM DB

Plaintiff,
v.

ORDER

J. BARBOUR,

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Defendant.

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

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under 42 U.S.C. § 1983 alleging defendant Barbour forced him to do strenuous manual labor

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contrary to his medical orders in violation of his First and Eighth Amendment rights. The matter

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was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On March 1, 2017, the magistrate judge filed findings and recommendations, which were

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

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and recommendations were to be filed within fourteen days. (ECF No. 50.) Neither party has

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filed objections to the findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having 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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the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations filed March 1, 2017 (ECF No. 55) are adopted

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Defendant Barbour’s partial motion for summary judgment for failure to exhaust

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in full;

administrative remedies is granted; and
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Plaintiff’s claim for deliberate indifference is dismissed.

DATED: March 21, 2017

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UNITED STATES DISTRICT JUDGE

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