(PC) Cortinas v. Huerta ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, 1:17-cv-00130-AWI-GSA-PC 12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ENTERED 13 vs. ON JULY 24, 2019, DUE TO PARTIES’ POST-FINDINGS-AND- 14 M. HUERTA, et al., RECOMMENDATIONS ARGUMENTS 15 Defendants. (ECF No. 62.) 16 17 Larry William Cortinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now 19 proceeds with Plaintiff’s original Complaint, filed on January 30, 2017, against Correctional 20 Officers J. Scalia and M. Huerta (“Defendants”) for use of excessive force in violation of the 21 Eighth Amendment.1 (ECF No. 1.) 22 On July 24, 2019, Defendants filed a motion for summary judgment on the ground that 23 the undisputed facts show that Plaintiff’s claims are barred under the favorable termination 24 doctrine in Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 51.) On November 21, 2019, 25 26 1 On September 13, 2017, the court issued an order for this case to proceed only against defendants 27 Scalia and Huerta for use of excessive force and against defendant Scalia for retaliation. (ECF No. 11.) On August 20, 2018, the court dismissed Plaintiff’s retaliation claim against defendant Scalia based on Plaintiff’s failure to 28 exhaust administrative remedies. (ECF No. 37.) 1 the court entered findings and recommendations, recommending that Defendants’ motion for 2 summary judgment be denied. (ECF No. 62.) On December 5, 2019, Defendants filed objections 3 to the findings and recommendations. (ECF No. 63.) On February 18, 2020, Plaintiff filed a 4 “Declaration of New Facts Which Moot the Heck Bar Question.” (ECF No. 64.) On March 3, 5 2020, Defendants filed a response to Plaintiff’s declaration. (ECF No. 65.) 6 In light of the parties’ post-findings-and-recommendations arguments, the court shall 7 withdraw its findings and recommendations of November 21. 2019, and enter new findings and 8 recommendations in due course. 9 Accordingly, IT IS HEREBY ORDERED that the court’s findings and recommendations, 10 entered on July 24, 2019, are WITHDRAWN. 11 IT IS SO ORDERED. 12 13 Dated: March 20, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28