Elder v. Silva et al

Filing 45

ORDER signed by District Judge Troy L. Nunley on 5/3/21 ADOPTING in full 40 Findings and Recommendations and GRANTING IN PART AND DENYING IN PART 34 Defendants' Motion for Summary Judgment. This action will proceed on the following claim s against Defendant Joksch: Plaintiff's Eighth Amendment claim against Defendant Joksch based on the cell move ordered on 9/8/2014 and Plaintiff's First Amendment retaliation claim against Defendant Joksch based on the cell move ordered on 9/8/14. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COREY JEROME ELDER,

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Plaintiff,

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No. 2:16-cv-01925-TLN-DMC

v.

ORDER

SILVA, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District

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of California local rules.

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On March 23, 2021, the Magistrate Judge filed findings and recommendations herein

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which were served on the parties and which contained notice that the parties may file objections

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within the time specified therein. No objections to the findings and recommendations have been

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filed.

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The Court has reviewed the file and finds the findings and recommendations to be

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supported by the record and the Magistrate Judge’s analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations filed March 23, 2021, are ADOPTED IN

2.

Defendants’ motion for summary judgment (ECF No. 34) is GRANTED in part

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FULL;

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and DENIED in part as follows:

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a.

Defendants’ motion is granted as to the merits of Plaintiff’s claims
against Defendants Silva, Speers, and Ramsey, as Plaintiff cannot
prevail on the merits as to the claims against these Defendants;

b.

Defendants’ motion is denied as to the merits of Plaintiff’s claims
against Defendant Whitcome;

c.

Defendants’ motion is granted as to Plaintiff’s claims against
Defendants Whitcome and Brackett, as well as the portion of his
claim against Defendant Joksch based on denial of a sack lunch,
because such claims are unexhausted;

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d.

Defendants’ motion as to qualified immunity is denied;

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e.

Defendants’ motion is granted as to Defendant Hogan for failure
to state a claim; and

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3.

This action will proceed on the following claims against Defendant Joksch:
a.

Plaintiff’s Eighth Amendment claim against Defendant Joksch
based on the cell move ordered on September 8, 2014; and

b.

Plaintiff’s First Amendment retaliation claim against Defendant
Joksch based on the cell move ordered on September 8, 2014.

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DATED: May 3, 2021

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Troy L. Nunley
United States District Judge

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