Hardney v. Warren et al

Filing 83

ORDER ADOPTING 82 Findings and Recommendations signed by Chief District Judge Kimberly J. Mueller on 01/14/20 GRANTING IN PART 75 Motion to Dismiss. The excessive force claims against defendants Pogue and Hickman and the failure to intervene cla im against defendant Almodovar are DISMISSED; the motion is DENIED in all other respects. Plaintiff's 78 Motion for injunctive relief is DENIED. This matter is REFERRED back to the assigned magistrate judge for all further pretrial proceedings. (Benson, A.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN HARDNEY,

12

Plaintiff,

13
14

No. 2:16-cv-00172-KJM-EFB P

v.

ORDER

R. WARREN, et al.,

15

Defendants.

16
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

17
18

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

19

by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 12, 2019, the magistrate judge filed findings and recommendations, which

20
21

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

22

findings and recommendations were to be filed within fourteen days. Neither party has filed

23

objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United States,

24
25

602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed

26

de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law

27

by the magistrate judge are reviewed de novo by both the district court and [the appellate] court

28

/////
1

1

. . . .”). Having reviewed the file, the court finds the findings and recommendations to be

2

supported by the record and by the proper analysis.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. The findings and recommendations filed December 12, 2019, are adopted in full.

5

2. Defendants’ motion to dismiss (ECF No. 75) is GRANTED in part. The excessive

6

force claims against defendants Pogue and Hickman and the failure to intervene claim against

7

defendant Almodovar are dismissed for the reasons stated in the magistrate judge’s findings and

8

recommendations. The motion is denied in all other respects.

9
10

3. Plaintiff’s motion for injunctive relief (ECF No. 78) is DENIED.
4. This matter is referred back to the assigned magistrate judge for all further pretrial

11

proceedings.

12

DATED: January 14, 2020.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2