(PC) Taylor v. Alardo et al

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/18/2020 RECOMMENDING 20 Motion to Dismiss be granted and this action be dismissed. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON TAYLOR, 12 No. 2:19-cv-2241 WBS DB P Plaintiff, 13 v. 14 FINDINGS AND RECOMMENDATIONS J. ALARDO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendants used excessive force against him in violation of 19 his Eighth Amendment rights. 20 On March 30, 2020 a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) was filed on 21 behalf of defendants Alardo, Martin, and Ochoa.1 (ECF No. 20.) By order dated June 19, 2020, 22 the undersigned informed plaintiff that failure to file a written opposition or statement of no 23 opposition may be deemed a waiver of any opposition to the granting of defendants’ motion. 24 (ECF No. 22.) Plaintiff was directed to file an opposition or statement of no opposition within 25 sixty days. Those sixty days have passed, and plaintiff has not filed an opposition, statement of 26 //// 27 1 28 Defendants D. Easley and the California Department of Corrections and Rehabilitation (“CDCR”) were dismissed on screening. (See ECF Nos. 12, 21.) 1 1 no opposition, requested additional time to do so, updated his address,2 or otherwise responded to 2 the court’s order. Therefore, the court finds that plaintiff’s failure to oppose should be deemed a 3 waiver of opposition to the granting of the motion. 4 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 5 1. Defendants’ March 30, 2020 motion to dismiss (ECF No. 20) be granted; and 6 2. This action be dismissed. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: November 18, 2020 16 17 18 19 20 21 22 23 DB:12 DB:1/Orders/Prisoner/Civil.Rights/tayl2241.mtd.f&rs 24 25 26 27 28 The court takes judicial notice of CDCR’s Inmate Locator system located at http://inmatelocator.cdcr.ca.gov which reflects that plaintiff is now housed at California State Prison Sacramento. However, plaintiff’s most recent change of address states that he is incarcerated at Mule Creek State Prison. See Louis v. McCormick & Schmick Restaurant Corp., 460 F.Supp.2d 1153, 1155 fn.4 (C.D. Cal. 2006) (the court may take judicial notice of state agency records). 2 2

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