(PC) Villery v. California Department of Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED M. VILLERY, No. 1:15-cv-00987-ADA-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 182) 14 RICHARD KENDALL, et al., 15 Defendants. 16 17 Plaintiff Jared M. Villery (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 19 Defendants Kendall, Acosta, Jones, Guerrero, Woodward,1 and Grimmig for deliberate indifference 20 in violation of the Eighth Amendment, and against Defendant Macomber2 for promulgation of a 21 policy to deny single cell housing for inmates with serious mental disorders in violation of the 22 Eighth Amendment. Plaintiff’s claims arise out of allegations that he developed Post-Traumatic 23 Stress Disorder (“PTSD”) while in the custody of the California Department of Corrections and 24 Rehabilitation (“CDCR”). Plaintiff claims that at multiple institutions and over several years, his 25 1 Erroneously sued as “Woodard.” 2 Effective December 12, 2022, Secretary Macomber has assumed the position of Secretary for 26 the California Department of Corrections and Rehabilitation. The Court notes that under Federal 27 Rule of Civil Procedure 25(d), Secretary Macomber should be substituted for former Secretaries Beard, Kernan, and Allison with respect to Plaintiff’s claim for a violation of his rights based on a 28 policy promulgated in the Secretary’s official capacity. 1 PTSD was not properly considered by prison officials in determining his housing status. 2 On September 13, 2021, Defendants filed a motion for summary judgment. (ECF No. 170.) 3 Plaintiff was provided with notice of the requirements for opposing a motion for summary 4 judgment. (ECF No. 170 -7); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988). 5 On September 23, 2021, the assigned Magistrate Judge stayed this action pending Plaintiff’s 6 interlocutory appeal with the Ninth Circuit Court of Appeals, Case Number 21-15425. (ECF No. 7 171.) On October 19, 2022, upon resolution of the interlocutory appeal, the Magistrate Judge issued 8 an order lifting the stay of this action and resetting the briefing schedule for Defendants’ motion 9 for summary judgment. (ECF No. 180.) Plaintiff was directed to file an opposition or statement 10 of non-opposition to Defendants’ motion for summary judgment within thirty days from the date 11 of service of the Court’s order, and was warned that failure to file an opposition or statement of 12 non-opposition in compliance with the Court’s order would result in dismissal of this action, with 13 prejudice, for failure to prosecute. (Id. at 2.) 14 On December 2, 2022, following the expiration of the deadline for Plaintiff to file his 15 opposition, Defendants filed a “Notice of Non-Opposition to Defendants’ Motion for Summary 16 Judgment,” notifying the Court that Defendants had not received an opposition to their motion for 17 summary judgment and requesting that the Court dismiss this action with prejudice for failure to 18 prosecute. (ECF No. 181.) 19 On December 6, 2022, the Magistrate Judge issued findings and recommendations 20 recommending dismissal of this action, with prejudice, for failure to prosecute and for failure to 21 obey a court order. (ECF No. 182.) Those findings and recommendations were served on the 22 parties and contained notice that any objections thereto were to be filed within fourteen days after 23 service. (Id. at 5.) No objections have been filed, and the deadline to do so has passed. Plaintiff 24 has not otherwise communicated with the Court regarding this action. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 27 Magistrate Judge’s findings and recommendations are supported by the record and by proper 28 analysis. 1 Accordingly, 2 1. The findings and recommendations issued on December 6, 2022, (ECF No. 182), 3 are ADOPTED IN FULL; 4 2. This action is dismissed, with prejudice, for failure to prosecute and failure to obey 5 acourt order; and 6 3. The Clerk of the Court is directed to terminate all pending motions and close this 7 case. 8 9 19 | IT IS SO ORDERED. 11 Dated: _ January 25, 2023 UNITED fTATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28