(PC) Underwood v. Tan ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERROL LOVELL UNDERWOOD, No. 2:17-CV-0174-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. TAN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 18 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 19 Eastern District of California local rules. 20 Defendants moved for summary judgment more than a year ago. ECF No. 26. 21 Since then, the Magistrate Judge granted Mr. Underwood several additional months to oppose 22 that motion. See ECF Nos. 32, 34. He did not file an opposition. The defendants also moved to 23 dismiss the claims against a nurse, Ms. Egipto, whose death was disclosed to Mr. Underwood 24 more than a year ago without any response. See Not. Suggestion of Death, ECF No. 23; Am. Not. 25 Suggestion of Death, ECF No. 30; Mot. Dismiss, ECF No. 35. The Magistrate Judge also granted 26 Mr. Underwood several additional months to oppose the motion to dismiss, but he did not file an 27 opposition. See ECF Nos. 37, 39, 41. 28 ///// 1 On September 23, 2020, the Magistrate Judge filed findings and recommendations, 2 in which he recommends granting both the motion to dismiss and the motion for summary 3 judgment. The findings and recommendations were served on the parties and contained notice 4 that the parties may file objections within the time specified therein. No objections to the 5 findings and recommendations have been filed, though Mr. Underwood did request leave to 6 substitute the State of California in place of Ms. Egipto, ECF No. 46. The Magistrate Judge 7 denied that motion on the basis of Mr. Underwood’s delays and California’s immunity under the 8 Eleventh Amendment. ECF No. 48. 9 Because no party has objected to the findings and recommendations, the court 10 presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th 11 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. 12 Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are 13 reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the 14 file, the court finds the findings and recommendations to be supported by the record and by the 15 proper analysis. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed September 23, 2020, are adopted in full; 18 2. Defendants’ motion to dismiss Defendant Egipto, ECF No. 35, is granted; 19 3. Defendant Egipto is dismissed; 20 4. Defendants’ motion for summary judgment, ECF No. 26, is granted; and 21 5. The Clerk of the Court is directed to enter judgment and close this file. 22 DATED: November 30, 2020. 23 24 25 26 27 28