Dicey v. Cobb et al

Filing 69

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERLAN LYNELL DICEY,

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No. 2:14-cv-2661 TLN CKD P

Plaintiff,

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v.

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T. COBB, et al.,

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ORDER

Defendants.

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

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 13, 2017, the magistrate judge filed findings and recommendations herein

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

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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Plaintiff objects to the Magistrate Judge’s grant of summary judgment as to Defendant

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Hood. (Object., ECF No. 67, at 2.) Plaintiff maintains that Defendant Hood made a retaliatory

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statement prior to Plaintiff’s cell transfer. (ECF No. 67, at 2.) Plaintiff argues that Defendant

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Hood made a retaliatory statement similar to Defendant Betti prior to the cell transfer. (ECF No.

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67, at 2.) Specifically, Defendant Hood allegedly said: “Dicey you will be moved to the lower
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yard if you don’t let me see you trash that appeal right now, this is your last chance to keep

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everything you now have, once you are moved you will los[e] your job.” (Compl., ECF No. 1, at

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21.) The Magistrate Judge correctly identified evidence showing a genuine issue of material fact

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as to whether Defendant Betti recommended and thereby caused Plaintiff’s cell transfer. The

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Magistrate Judge identifies Defendant Betti’s alleged statement as: “Dicey I see that second

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watch now has you on their shit list. You just can’t stop your little appeals huh. You[‘re] going to

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lose…[T]his is your last chance to keep everything you now have, once you are moved you will

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lose your job.” (ECF No. 1, at 6–7.) This Court disagrees with the Magistrate Judge’s finding

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that there is no evidence demonstrating a genuine issue of material fact against Defendant Hood.

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Defendant Betti’s alleged retaliatory statement is similar to Defendant Hood’s and just as likely to

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be construed as a threat. Accordingly, this Court finds that Plaintiff has demonstrated a genuine

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issue of material fact as to whether Defendant Hood recommended Plaintiff be transferred for

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refusing to withdraw his grievances. Therefore, Defendant Hood is not entitled to summary

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judgment.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and, except as

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mentioned above, by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 13, 2017, are adopted in part;

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2. Defendants Betti and Hood’s motion for summary judgment (ECF No. 29) is denied as

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follows:
A. Denied with respect to Plaintiff’s remaining claim against Defendant Hood;

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and
B. Denied with respect to Plaintiff’s remaining claim against Defendant Betti.

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Dated: March 31, 2017

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Troy L. Nunley
United States District Judge