Tate v. Andres

Filing 89

ORDER signed by Chief District Judge Kimberly J. Mueller on 08/29/22 ADOPTING 82 Findings and Recommendations in full, GRANTING 72 Motion for Summary Judgment and DISMISSING, without prejudice, Plaintiff's claim of retaliation against def endant Andres for failure to exhaust administrative remedies. This case will proceed on plaintiff's excessive force claim against defendant Andres. This matter is REFERRED back to the assigned magistrate judge for all further pretrial proceedings.(Licea Chavez, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEREK TATE,

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Plaintiff,

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No. 2:18-cv-0822 KJM AC P

v.

ORDER

J. ANDRES,

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Defendant.

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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.
On April 13, 2022, the magistrate judge filed findings and recommendations, which were

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

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and recommendations were to be filed within twenty-one days. ECF No. 82. Plaintiff has filed

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objections to the findings and recommendations, ECF No. 83, to which defendant has responded,

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ECF No. 85.

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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, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed April 13, 2022 (ECF No. 82), are adopted in

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full;

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2. Defendant’s motion for partial summary judgment (ECF No. 72) is granted;

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3. Plaintiff’s claim of retaliation against defendant Andres is dismissed without

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prejudice for failure to exhaust administrative remedies; and

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4. This case will proceed on plaintiff’s excessive force claim against defendant Andres.

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5. This matter is referred back to the assigned magistrate judge for all further pretrial

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proceedings.
DATED: August 29, 2022

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