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)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RANDY M. CORDERO,
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2:13-cv-1551-JAM-KJN P
Plaintiff,
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No.
v.
ORDER
NICK GUZMAN, et al.,
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Defendants.
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On June 16, 2017, the magistrate judge filed findings and
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recommendations, which were served on the parties and which
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contained notice that any objections to the findings and
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recommendations were to be filed within seven (7) days.
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170.
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within five days after service of the objections.
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2017, Plaintiff filed objections to the findings and
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recommendations, and on June 28, 2017, Defendant filed a response
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to those objections.
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objections with the parties at the Pretrial Conference held on
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June 30, 2017.
ECF No.
Any response to the objections were to be filed and served
ECF Nos. 177, 182.
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On June 23,
The Court discussed the
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This court reviews de novo those portions of the proposed
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findings of fact to which an objection has been made.
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§ 636(b)(1); McDonnell Douglas Corp. v. Commodore Business
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Machines, 656 F.2d 1309, 1313 (9th Cir. 1981); see also Dawson v.
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Marshall, 561 F.3d 930, 932 (9th Cir. 2009).
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of the proposed findings of fact to which no objection has been
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made, the court assumes its correctness and decides the matter on
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the applicable law.
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208 (9th Cir. 1979).
The magistrate judge’s conclusions of law
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are reviewed de novo.
See Britt v. Simi Valley Unified School
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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,
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The court has reviewed the applicable legal standards and,
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good cause appearing, concludes that it is appropriate to adopt
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the findings and recommendations.
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front bead sight is, at minimum, relevant to Defendant’s
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credibility as a witness.
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Plaintiff’s requested adverse inference instruction should be
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denied.
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recommendations with the following additions:
The Court finds that the bent
However, the Court agrees that
The Court therefore adopts the magistrate judge’s
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The findings and recommendations are ADOPTED IN FULL.
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2.
Plaintiff’s motion for sanctions is GRANTED IN PART AND
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DENIED IN PART WITHOUT PREJUDICE.
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at trial, depending upon whether Defendant’s testimony or
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Defendant’s expert testimony opens the door to reconsideration of
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the need for an adverse inference instruction. Defendant is
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precluded from offering non-expert and expert evidence in his
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case-in-chief regarding whether the front bead sight was bent and
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whether it caused the shot to go errant.
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Plaintiff may renew his motion
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Plaintiff’s requested instruction will not be given.
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The Court may give a modified jury instruction that concerns the
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failure to preserve evidence and an inference with respect to
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Defendant Guzman’s credibility if it finds that such an
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instruction is needed.
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instruction in his proposed jury instructions for the Court’s
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consideration.
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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
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