(PC) Vovos v. Martinez ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS VOVOS, No. 2:21-cv-00837-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 D. MARTINEZ, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 18 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern 19 District of California local rules. 20 On August 7, 2023, the Magistrate Judge filed findings and recommendations, which were 21 served on the parties and which contained notice that the parties may file objections within the 22 time specified therein. No objections to the findings and recommendations have been filed. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 24 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 25 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 26 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 27 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 28 supported by the record and by the proper analysis. ] “When prison officials use excessive force against prisoners, they violate the inmates’ 2 | Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 3 || 298 F.3d 898, 903 (9th Cir. 2002). However, “i]t is obduracy and wantonness, not inadvertence 4 | orerror in good faith, that characterize the conduct prohibited by the Cruel and Unusual 5 || Punishments Clause[.]” Whitley v. Albers, 475 U.S. 312, 319 (1986). Because plaintiff's alleged 6 || fall and injuries were a result of an accident, plaintiff does not state a claim for excessive force 7 || under the Eighth Amendment. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed August 7, 2023, are adopted in full; 10 2. Defendant’s unopposed motion to dismiss, ECF No. 26, is GRANTED; 11 3. Plaintiff's excessive force claim against Defendant Martinez is DISMISSED; 12 4. This action proceeds against Defendant Martinez on Plaintiff's Eighth Amendment 13 || claims relating to safety and health only; 14 5. Defendant Martinez shall file an answer to Plaintiff’s complaint within 30 days of 15 || the date of this order; and 16 6. This matter is referred back to the Magistrate Judge for further pre-trial 17 || proceedings. 18 || DATED: September 25, 2023. 19 CHIEF ED STATES DISTRICT JUDGE 22 23 24 25 26 27 28