Opinion
2:19-cv-1792 KJM CKD P
01-23-2023
JAMISI JERMAINE CALLOWAY, Plaintiff, v. D. NIEVES, et al., Defendants.
ORDER
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.
On June 21, 2022, 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 fourteen days. The parties have filed objections to the findings and recommendations. ECF Nos. 109, 110, 112.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for an extension of time (ECF No. 111) is denied as moot based upon his objections filed on the same day.
2. The findings and recommendations filed June 21, 2022 (ECF No. 108) are adopted in full.
3. Defendants' motion for summary judgment (ECF No. 95) is granted in part and denied in part.
4. Specifically, the motion for summary judgment is granted as to defendants Luang, Mims, Aungst, and Abu based on plaintiff's failure to exhaust his administrative remedies.
5. The claims against defendants Luang, Mims, Aungst, and Abu are dismissed without prejudice.
6. Defendant Nieves's motion for summary judgment is granted with respect to the use of pepper spray, but denied with respect to the use of a metal baton.
7. This matter is referred to the court's ADR and Pro Bono Director, Sujean Park, to locate pro bono counsel to represent plaintiff.
8. A Final Pretrial Conference is set for April 28, 2023, at 10:00 a.m. before the undersigned.