Hammler v. Aviles

Filing 73

Order: (1) Adopting the Report and Recommendation and (2) Granting Defendants Motion for Summary Judgment. (Doc. Nos. 60 , 72 ). Signed by Judge Anthony J. Battaglia on 1/6/2022. (All non-registered users served via U.S. Mail Service)(jrm)

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Case 3:17-cv-01185-AJB-WVG Document 73 Filed 01/06/22 PageID.696 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 12 13 14 15 Case No.: 17-cv-01185-AJB-WVG ORDER: Plaintiff, v. (1) ADOPTING THE REPORT AND RECOMMENDATION and F. AVILES, (2) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. Defendant. 16 17 18 (Doc. Nos. 60, 72) 19 20 I. BACKGROUND 21 This is a civil rights action pursuant to 42 U.S.C. § 1983 filed by Allen Hammler 22 (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, against F. Aviles 23 (“Defendant”), a correctional officer. 1 Plaintiff alleges that Defendant violated his civil 24 rights by performing a takedown maneuver in 2016 and retaliating against Plaintiff when 25 he accused Defendant, in a recorded statement, of using excessive force in connection with 26 the takedown incident. 27 28 1 Plaintiff is an adjudicated vexatious litigant. (Doc. No. 36.) 1 17-cv-01185-AJB-WVG Case 3:17-cv-01185-AJB-WVG Document 73 Filed 01/06/22 PageID.697 Page 2 of 3 1 Before the Court is Defendant’s motion for summary judgment on both claims. (Doc. 2 No. 60.) The Court referred the matter to Magistrate Judge William V. Gallo for a Report 3 and Recommendation (“R&R”), which he issued on November 23, 2021. (Doc. No. 72.) 4 The R&R recommends that the Court grant Defendant’s motion for summary judgment 5 and enter judgment in his favor. (Id. at 1, 18.) 2 6 Regarding Plaintiff’s excessive force claim, the Magistrate Judge found that: (A) 7 considering the undisputed facts, the takedown maneuver that Defendant used on Plaintiff 8 was objectively reasonable and cannot support a claim of excessive force; and (B) 9 Defendant is entitled to qualified immunity. (Id. at 8, 12.) As to Plaintiff’s retaliation claim, 10 the Magistrate Judge found that there was no genuine issue of material fact as to his 11 retaliation claim. (Id. at 15.) The parties were instructed to file written objections with the 12 Court no later than December 30, 2021. (Id. at 18.) 13 II. DISCUSSION 14 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 15 judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 16 a de novo determination of those portions of the report . . . to which objection is made[,]” 17 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 18 made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 19 Remsing, 874 F.2d 614, 617 (9th Cir. 1989). “The statute [§ 636(b)(1)(C)] makes it clear 20 that the district judge must review the magistrate judge’s findings and recommendations 21 de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 22 1114, 1121 (9th Cir. 2003) (emphasis in original). Thus, in the absence of timely 23 objection(s), the court “need only satisfy itself that there is no clear error on the face of the 24 record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s 25 note to 1983 amendment; Reyna-Tapia, 328 F.3d at 1123. 26 // 27 28 2 The pinpoint page citations refer to the ECF-generated page numbers at the top of each filing. 2 17-cv-01185-AJB-WVG Case 3:17-cv-01185-AJB-WVG Document 73 Filed 01/06/22 PageID.698 Page 3 of 3 1 Here, neither party has filed an objection to the Magistrate Judge’s R&R. Having 2 reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no clear error. 3 Accordingly, the Court hereby ADOPTS the Magistrate Judge’s R&R in its entirety and 4 GRANTS Defendant’s motion for summary judgment. (Doc. Nos. 60, 72.) The Clerk of 5 Court is instructed to enter judgment accordingly and close this case. 6 7 IT IS SO ORDERED. Dated: January 6, 2022 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17-cv-01185-AJB-WVG

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