Opinion
3:20-cv-00284-MMD-CLB
11-30-2022
EDWARD LONDON, Plaintiff, v. CHARLES DANIELS, et al., Defendants.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
Pro se Plaintiff Edward London brings this action against Defendants Skyler Sheeks and Luis Sencion-Gonzalez under 42 U.S.C. § 1983. (ECF No. 8.) Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Carla L. Baldwin (ECF No. 43), recommending that the Court deny Defendants' motion for summary judgment (ECF No. 32 (“Motion”)). Objections to the R&R were due November 28, 2022. To date, neither party has objected to the R&R. For this reason, and as explained below, the Court adopts the R&R in full and denies Defendants' Motion.
Because there were no objections, the Court need not conduct de novo review, and is satisfied that Judge Baldwin did not clearly err. See United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges' findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.”) (emphasis in original). First, Judge Baldwin correctly found that Defendants' official capacity argument fails because the claims were screened as personal capacity claims. (ECF No. 43 at 7.) See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016). Second, the record does not show London's failure to exhaust because Defendants did not respond to his grievance and administrative remedies were unavailable to him after London was told not to resubmit his grievance. (Id. at 10-11.) See Fordley v. Lizarraga, 18 F.4th 344, 352 (9th Cir. 2021); Ross v. Blake, 578 U.S. 632, 44 (2016). 1 Next, Judge Baldwin correctly concluded that there is a genuine issue of material fact regarding whether Defendants used excessive force against London. (Id. at 13-14.) See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Finally, Judge Baldwin correctly determined that Defendants are not protected by qualified immunity because a reasonable factfinder could conclude that Defendants violated London's clearly established constitutional rights. (Id. at 16.) See C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014). Accordingly, the Court adopts Judge Baldwin's R&R in full and denies Defendants' Motion.
It is therefore ordered that Judge Baldwin's Report and Recommendation (ECF No. 43) is accepted and adopted in full.
It is further ordered that Defendants' motion for summary judgment (ECF No. 32) is denied.
It is further ordered that this case is referred to Judge Baldwin to conduct a settlement conference. The deadline for the parties to file the proposed joint pretrial order is 30 days from the date of the settlement conference, assuming settlement is not effectuated. 2