Hardney v. Warren et al

Filing 111

ORDER signed by Chief District Judge Kimberly J. Mueller on 7/17/2020 CONFIRMING 83 the order adopting in full the findings and recommendations and TERMINATING 102 Motion to Vacate. In response to defendants' response to plaintiff's Motion to Vacate 105 , at 1-2, the court CLARIFIES that plaintiff's 86 Motion for Reconsideration is no longer pending. The Clerk is to re-serve a copy of the findings and recommendations on plaintiff. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HARDNEY,

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No. 2:16-cv-0172-KJM-EFB P

Plaintiff,
v.

ORDER

R. WARREN, et al.,
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 as provided

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

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On December 12, 2019, the magistrate judge filed findings and recommendations herein

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

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and recommendations were to be filed within fourteen days. ECF No. 82. Plaintiff did not file

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timely objections to the findings and recommendations. On January 15, 2020, this court adopted

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the findings and recommendations, dismissed the excessive force claims against defendants

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Pogue and Hickman and the failure to intervene claim against defendant Almodovar, and denied

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plaintiff’s request for injunctive relief. ECF No. 83.

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On January 31, 2020, plaintiff notified the court he had been denied the opportunity to file

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objections to the December 12, 2019, findings and recommendations because he never received a

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copy of them. ECF No. 86. On February 12, 2020, the Clerk of the Court re-served a copy of the

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findings and recommendations to plaintiff at his address of record. ECF No. 88. He has now

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filed a “Motion to Vacate [the] Dismissal of Defendants Pogue, Hickman, and Almodovar.” ECF

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No. 102. Defendants have opposed the motion. ECF No. 105. The court construes plaintiff’s

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motion as belated objections to the findings and recommendations. In an abundance of caution,

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the court will reconsider the order adopting the findings and recommendations in light of

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plaintiff’s recently filed objections.

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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 reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.

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Accordingly, the order entered on January 15, 2020 (ECF No. 83), adopting in full the

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findings and recommendations and dismissing the excessive force claims against defendants

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Pogue and Hickman and the failure to intervene claim against defendant Almodovar and denying

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plaintiff’s motion for injunctive relief, is CONFIRMED. The Clerk of the Court shall terminate

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ECF No. 102.

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In response to defendants’ response to plaintiff’s Motion to Vacate, ECF No. 105 at 1–2,

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the court clarifies that plaintiff’s Motion for Reconsideration at ECF No. 86 is no longer pending,

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as it was substantively resolved by the Minute Order at ECF No. 88, directing the Clerk of the

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Court to re-serve a copy of the findings and recommendations on plaintiff. See id. To the extent

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the Motion for Reconsideration is still pending, the court considers it resolved by the

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confirmation of the January 15, 2020 order here.

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IT IS SO ORDERED.
DATED: July 17, 2020.

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