(PC) Faultry v. Saechao

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CHARLES FAULTRY, No. 2:18-cv-1850 KJM AC 12 Plaintiff, 13 v. ORDER J. SAECHAO, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On May 15, 2020, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. ECF No. 35. Neither party has filed objections to the findings and recommendations. Plaintiff has filed a motion to dismiss his claims against defendant Shirley, ECF No. 39, which is unopposed; the court does not construe that motion as objections but rather grants it here.

26 The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.

4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The findings and recommendations filed May 15, 2020, are adopted in full; 6 2. Defendants’ motion for partial summary judgment seeking dismissal of plaintiff’s state law battery claim against defendant Saechao, ECF No. 25, is GRANTED; 8 3. Plaintiff’s motion to dismiss his claims against defendant Shirley, ECF No. 39, is also GRANTED; 10 4. Defendant Shirley is dismissed from this action without prejudice; 11 5. This action now proceeds only on plaintiff’s federal claims for excessive force and retaliation against defendant Saechao; and 13 6. This matter is referred back to the assigned magistrate judge for all further pretrial proceedings.

15 DATED: September 30, 2020.