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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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

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