Rice v. McCord et al

Filing 51

ORDER signed by Senior Judge William B. Shubb on 6/9/2020 ORDERING that defendants' 50 objections to the findings and recommendations are OVERRULED. The 49 findings and recommendations are ADOPTED to the extent they are consistent with this order. Defendant Drake's 40 motion for summary judgment is GRANTED IN PART. All claims against Drake are DISMISSED with the exception of plaintiff's Eighth Amendment excessive force claim. Defendants Goodrich and McCord's 41 moti on for summary judgment is GRANTED IN PART. All claims against Goodrich are DISMISSED. All claims against McCord are DISMISSED with the exception of plaintiff's Eighth Amendment claim excessive force claim. This action shall proceed solely on plaintiff's Eighth Amendment excessive force claim against defendants McCord and Drake. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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KORDY RICE,
Plaintiff,

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No. 2:16-CV-0562 WBS DMC

v.

ORDER

R. McCORD, C. DRAKE, and
GOODRICH,
Defendants.

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----oo0oo---Plaintiff, a prisoner proceeding pro se, brings this

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civil rights action pursuant to 42 U.S.C. § 1983.

The matter was

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referred to a United States Magistrate Judge pursuant to Eastern

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District of California local rules.

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On March 2, 2020, the Magistrate Judge filed findings

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and recommendations herein which were served on the parties and

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which contained notice that the parties may file objections

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within the time specified therein.

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findings and recommendations have been filed.
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Timely objections to the

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In accordance with the provisions of 28 U.S.C. §

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636(b)(1)(C) and Local Rule 304(f), this Court has conducted a de

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novo review of this case.

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file, the Court finds the findings and recommendations to be

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supported by the record and by proper analysis, except to the

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extent discussed below.

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Having carefully reviewed the entire

In adopting the findings and recommendations, the court

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overrules defendants’ objection that summary judgment is

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appropriate as to plaintiff’s claim that he was dragged by

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defendants McCord and Drake.

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conclusion that any injury suffered by plaintiff was solely a

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result of his being slammed to the ground, plaintiff does not

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assert separate claims for being dragged and for being slammed to

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the ground.

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of events, specifically being dragged along the floor by McCord

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and Drake for about fifteen feet, and then being slammed to the

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ground by defendant McCord after he stood up.

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(Docket No. 1).)

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While the evidence supports a

Rather, he asserts claims based on an alleged course

(Compl. at 5

Moreover, whether defendant was dragged, and if so, in

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what matter, is a disputed issue of fact.

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Reply to Defs.’ Statement of Undisputed Facts (Docket No. 44. at

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¶ 15 (disputing defendants’ contentions that plaintiff was merely

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dragging his feet, at no time had his entire body on the ground,

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and did not appear to be in pain).)

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summary judgment regarding plaintiff’s alleged dragging by McCord

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and Drake is inappropriate.

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(See, e.g., Pl.’s

Given the disputed facts,

This determination requires further examination of the
findings and recommendations.

The magistrate judge recommends
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that summary judgment be granted in full in favor of defendant

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Drake.

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judgment on the dragging incident is inappropriate, plaintiff may

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still proceed on his excessive force claim against Drake, who

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participated in that dragging with McCord.

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court declines to adopt the findings and recommendations to the

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extent that the magistrate judge recommends dismissal of all

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claims against Drake.

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and recommendations in all other respects.

However, given the court’s determination that summary

Accordingly, the

However, the court will adopt the findings

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Defendants’ objections to the findings and

recommendations are overruled.

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2.

The findings and recommendations filed March 2,

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2020 (Docket No. 49), are adopted to the extent they are

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consistent with this order.

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3.

Defendant Drake’s motion for summary judgment (ECF

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No. 40) is granted in part.

All claims against Drake are

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dismissed with the exception of plaintiff’s Eighth Amendment

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excessive force claim.

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4.

Defendants Goodrich and McCord’s motion for

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summary judgment (ECF No. 41) is granted in part.

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against Goodrich are dismissed.

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dismissed with the exception of plaintiff’s Eighth Amendment

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claim excessive force claim.

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All claims

All claims against McCord are

This action shall proceed solely on plaintiff’s Eighth

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Amendment excessive force claim against defendants McCord and

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Drake.

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Dated:

June 9, 2020
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