(PC) Garces v. Gamboa

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA LUIS MANUEL GARCES, Case No. 1:21-cv-0392 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 13 v. SUMMARY JUDGMENT FOR DEFENDANTS ALLISON, GAMBOA, AND BABB M. GAMBOA., et al. (Doc. 279) Defendants.

17 Luis Manuel Garces is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, asserting claims for: (1) excessive force in violation of the Eighth Amendment, (2) deliberate indifference to a serious medical need, and (3) procedural due process in violation of the Fourteenth Amendment. (Docs. 18, 21; see also Doc. 80.) Defendants Allison, Gamboa, and Babb moved for summary judgment on the claims raised against them pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting these “Defendants did not subject Plaintiff to excessive force, violate his due process rights, or otherwise violate Plaintiff’s constitutional rights in any way.” (Doc. 214 at 1; see also Doc. 214-1.)

25 In a sur-reply to the motion, Plaintiff requested additional discovery be permitted pursuant to Rule 56(d). (Doc. 249.) The magistrate judge observed that the Court issued a scheduling order on October 27, 2022; and the Court ordered “all discovery must be completed by August 24, 2023, more than six months before Plaintiff’s current Rule 56(d) request.” (Doc. 279 at 8, citing Doc. 78.) The magistrate judge found Plaintiff did not diligently pursue discovery, despite “ample time and opportunity” to do so. (Id.) Therefore, the magistrate judge recommended Plaintiff’s request for additional discovery be denied. (Id.) 4 Evaluating the merits of the motion for summary judgment, the magistrate judge found that “even assuming Plaintiff’s facts as true, Plaintiff has not provided any evidence that Defendant Allison directly ordered Defendants Cathey, Hernandez, Huerta, and Wolf to use excessive force against Plaintiff during the March 2019 DRB hearing.” (Doc. 279 at 12.) In addition, the magistrate judge determined “Plaintiff has not presented evidence that supports the inference that the criminal charges against Plaintiff were based on fabricated evidence,” such that there was a due process violation by Gamboa and Babb. (Id. at 17.) Therefore, the magistrate judge recommended the motion for summary judgment be granted. (Id. at 18.)

12 The Court served the Findings and Recommendations on Plaintiff and notified him that any objections were due within 14 days. (Doc. 279 at 18.) The Court advised Plaintiff the “failure to file objections within the specified time may result in the waiver of rights on appeal.”

15 (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Plaintiff did not file objections, and the time to do so has passed.

17 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case.

18 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 20 1. The Findings and Recommendations dated June 26, 2024 (Doc. 279) are 21 ADOPTED in full.

22 2. Plaintiff’s request for further discovery is DENIED.

23 3. The motion for summary judgment by Defendants Allison, Gamboa, and Babb 24 (Doc. 214) is GRANTED.

25 4. The Clerk of Court is directed to update the docket and terminate Allison, 26 Gamboa, and Babb as defendants.

27 /// 1 5. The action continues to proceed on Plaintiff's claims against the other defendants 2 and is referred to the magistrate judge for further proceedings.

4 IT IS SO ORDERED. | Dated: _ August 21, 2024 Charis [Tourn TED STATES DISTRICT JUDGE