Dicey v. Cobb et al
ORDER adopting in part 64 FINDINGS AND RECOMMENDATIONS, signed by District Judge Troy L. Nunley on 3/31/17. Defendants Betti and Hood's 29 motion for summary judgment is DENIED as follows: A. DENIED with respect to Plaintiff's remaining claim against Defendant Hood; and B. DENIED with respect to Plaintiff's remaining claim against Defendant Betti. (Kastilahn, A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BERLAN LYNELL DICEY,
No. 2:14-cv-2661 TLN CKD P
T. COBB, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 13, 2017, the magistrate judge filed findings and recommendations herein
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Plaintiff has filed
objections to the findings and recommendations.
Plaintiff objects to the Magistrate Judge’s grant of summary judgment as to Defendant
Hood. (Object., ECF No. 67, at 2.) Plaintiff maintains that Defendant Hood made a retaliatory
statement prior to Plaintiff’s cell transfer. (ECF No. 67, at 2.) Plaintiff argues that Defendant
Hood made a retaliatory statement similar to Defendant Betti prior to the cell transfer. (ECF No.
67, at 2.) Specifically, Defendant Hood allegedly said: “Dicey you will be moved to the lower
yard if you don’t let me see you trash that appeal right now, this is your last chance to keep
everything you now have, once you are moved you will los[e] your job.” (Compl., ECF No. 1, at
21.) The Magistrate Judge correctly identified evidence showing a genuine issue of material fact
as to whether Defendant Betti recommended and thereby caused Plaintiff’s cell transfer. The
Magistrate Judge identifies Defendant Betti’s alleged statement as: “Dicey I see that second
watch now has you on their shit list. You just can’t stop your little appeals huh. You[‘re] going to
lose…[T]his is your last chance to keep everything you now have, once you are moved you will
lose your job.” (ECF No. 1, at 6–7.) This Court disagrees with the Magistrate Judge’s finding
that there is no evidence demonstrating a genuine issue of material fact against Defendant Hood.
Defendant Betti’s alleged retaliatory statement is similar to Defendant Hood’s and just as likely to
be construed as a threat. Accordingly, this Court finds that Plaintiff has demonstrated a genuine
issue of material fact as to whether Defendant Hood recommended Plaintiff be transferred for
refusing to withdraw his grievances. Therefore, Defendant Hood is not entitled to summary
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
Court finds the findings and recommendations to be supported by the record and, except as
mentioned above, by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 13, 2017, are adopted in part;
2. Defendants Betti and Hood’s motion for summary judgment (ECF No. 29) is denied as
A. Denied with respect to Plaintiff’s remaining claim against Defendant Hood;
B. Denied with respect to Plaintiff’s remaining claim against Defendant Betti.
Dated: March 31, 2017
Troy L. Nunley
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?