(PC) Smith v. Diaz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, No. 2:20-cv-1004 DJC CKD P 12 Plaintiff, 13 v. ORDER 14 RALPH DIAZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner, has filed this civil rights action seeking relief under 42 18 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant 19 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 10, 2023, the Magistrate Judge filed findings and recommendations 21 herein which were served on all parties and which contained notice to all parties that 22 any objections to the findings and recommendations were to be filed within fourteen 23 days. No party has filed objections to the findings and recommendations. 24 The Court presumes that any findings of fact are correct. See Orand v. United 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law 26 are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 27 (9th Cir. 1983). Having reviewed the file, the Court finds the findings and 28 recommendations to be supported by the record and by the Magistrate Judge’s 1 | analysis. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendant Fujiwara, Stinson and Balbasova’s May 4, 2023, request for 4 | clarification is granted. 5 2. Under the heading “CLAIM II,” in plaintiff's second amended complaint, 6 | Plaintiff is permitted to proceed on the following claims: 7 A. Aclaim for excessive force in violation of the Eighth Amendment 8 against defendant Fujiwara for injuries sustained during the cell 9 extraction on June 17, 2016. 10 B. Aclaim for excessive force in violation of the Eighth Amendment 11 against defendant Stinson based upon Plaintiff's allegations that Stinson 12 poured feces and urine on Plaintiff during the cell extraction on June 17, 13 2016. 14 C. Claims arising under the Eighth Amendment against Defendants 15 Balbasova and Fujiwara for denying plaintiff medical care after the cell 16 extraction. 17 3. Any other claims arising under the heading “CLAIM II” against Defendants 18 | Fujiwara, Stinson or Balbasova which have not already been dismissed are now 19 | dismissed. 20 4. Defendants Fujiwara, Stinson, Balbasova and Romney shall file responsive 21 | pleading within 14 days. 22 23 DA IT |S SO ORDERED. 95 | Dated: _ October 6, 2023 Beek |) obbeatie Hon. Daniel labretta 26 UNITED STATES DISTRICT JUDGE 27 28