Cordero v. Guzman et al

Filing 186

ORDER adopting 170 FINDINGS AND RECOMMENDATIONS signed by District Judge John A. Mendez on 7/5/17: 156 Motion for Sanctions is GRANTED IN PART AND DENIED IN PART WITHOUT PREJUDICE. (Kaminski, H)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11
12

RANDY M. CORDERO,

13

2:13-cv-1551-JAM-KJN P

Plaintiff,

14
15

No.

v.

ORDER

NICK GUZMAN, et al.,

16

Defendants.

17
18

On June 16, 2017, the magistrate judge filed findings and

19

recommendations, which were served on the parties and which

20

contained notice that any objections to the findings and

21

recommendations were to be filed within seven (7) days.

22

170.

23

within five days after service of the objections.

24

2017, Plaintiff filed objections to the findings and

25

recommendations, and on June 28, 2017, Defendant filed a response

26

to those objections.

27

objections with the parties at the Pretrial Conference held on

28

June 30, 2017.

ECF No.

Any response to the objections were to be filed and served

ECF Nos. 177, 182.

1

On June 23,

The Court discussed the

1

This court reviews de novo those portions of the proposed

2

findings of fact to which an objection has been made.

3

§ 636(b)(1); McDonnell Douglas Corp. v. Commodore Business

4

Machines, 656 F.2d 1309, 1313 (9th Cir. 1981); see also Dawson v.

5

Marshall, 561 F.3d 930, 932 (9th Cir. 2009).

6

of the proposed findings of fact to which no objection has been

7

made, the court assumes its correctness and decides the matter on

8

the applicable law.

9

208 (9th Cir. 1979).

The magistrate judge’s conclusions of law

10

are reviewed de novo.

See Britt v. Simi Valley Unified School

11

Dist., 708 F.2d 452, 454 (9th Cir. 1983).

28 U.S.C.

As to any portion

See Orand v. United States, 602 F.2d 207,

12

The court has reviewed the applicable legal standards and,

13

good cause appearing, concludes that it is appropriate to adopt

14

the findings and recommendations.

15

front bead sight is, at minimum, relevant to Defendant’s

16

credibility as a witness.

17

Plaintiff’s requested adverse inference instruction should be

18

denied.

19

recommendations with the following additions:

The Court finds that the bent

However, the Court agrees that

The Court therefore adopts the magistrate judge’s

20

1.

The findings and recommendations are ADOPTED IN FULL.

21

2.

Plaintiff’s motion for sanctions is GRANTED IN PART AND

22

DENIED IN PART WITHOUT PREJUDICE.

23

at trial, depending upon whether Defendant’s testimony or

24

Defendant’s expert testimony opens the door to reconsideration of

25

the need for an adverse inference instruction. Defendant is

26

precluded from offering non-expert and expert evidence in his

27

case-in-chief regarding whether the front bead sight was bent and

28

whether it caused the shot to go errant.
2

Plaintiff may renew his motion

1

3.

Plaintiff’s requested instruction will not be given.

2

The Court may give a modified jury instruction that concerns the

3

failure to preserve evidence and an inference with respect to

4

Defendant Guzman’s credibility if it finds that such an

5

instruction is needed.

6

instruction in his proposed jury instructions for the Court’s

7

consideration.

8
9
10
11

4.

Plaintiff may include a modified

Officer Lindsey’s testimony is limited to the

statements made in his report.
IT IS SO ORDERED.
Dated:

July 5, 2017

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3