Thornberry v. Kernan et al

Filing 123

ORDER signed by District Judge Troy L. Nunley on 5/20/2021 ADOPTING IN FULL 119 Findings and Recommendations; GRANTING 111 Motion for Summary Judgment and DENYING AS MOOT 104 Motion for Summary Judgment. CASE CLOSED. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE THORNBERRY,

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No. 2:17-cv-00953-TLN-DMC

Plaintiff,
v.

ORDER

J. BAL, et al.,
Defendants.

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Plaintiff Daniel Lee Thornberry (“Plaintiff”), a prisoner proceeding pro se, brings this

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civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(21).

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On March 16, 2021, the magistrate judge filed findings and recommendations which were

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

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time specified. (ECF No. 119.) The magistrate judge recommended granting Defendants J. Bal

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(“Bal”), Michael Felder, M. Bobbala, C. Smith, and James Chau’s (collectively, “Defendants”)

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Motion for Summary Judgment (ECF No. 111) and denying Plaintiff’s Motion for Summary

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Judgment (ECF No. 104) as moot. (Id. at 40.)

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On April 6, 2021, Plaintiff filed objections after the specified deadline, arguing that (1) his

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claims against Bal should be allowed to move forward because the screening order found that he

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asserted cognizable claims against Bal and (2) the magistrate judge generally erred in requiring
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Plaintiff to produce evidence when disputing Defendants’ facts to create a genuine issue of

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disputed fact. (See ECF No. 120.) The magistrate judge deemed the objections timely. (ECF

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No. 121.) On April 21, 2021, Defendants filed a response Plaintiff’s objections. (ECF No. 122.)

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Defendants note that the magistrate judge used the proper standard for summary judgment and

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found Plaintiff’s “own statements insufficient to raise a genuine issue of material fact because

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‘self-serving’ statements must be substantiated by probative supporting evidence.” (Id. at 2–4

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(citing F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997);

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California Sportfishing Protection Alliance v. River City Waste Recyclers, LLC, 205 F. Supp. 3d

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1128, 1135 (E.D. Cal. 2016).) The Court agrees with Defendants. Defendants also ask this Court

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to adopt the magistrate judge’s findings and recommendations. (Id. at 7.) The magistrate judge

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did not vacate the findings and recommendations based upon Plaintiff’s objections.

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The Court presumes that any findings of fact are correct. See Orand v. United States, 602

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

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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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 by the magistrate judge’s analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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119), are ADOPTED IN FULL;

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2.

Defendants’ Motion for Summary Judgment (ECF No. 111) is GRANTED;

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3.

Plaintiff’s Motion for Summary Judgment (ECF No. 104) is DENIED as

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The Clerk of the Court is directed to enter judgment and close this file.

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The Findings and Recommendations filed on March 16, 2021 (ECF No.

moot; and

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IT IS SO ORDERED.

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DATED: May 20, 2021

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Troy L. Nunley
United States District Judge

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