Tolbert v. Peeler

Full title: ALFONZO TOLBERT, Plaintiff, v. D. PEELER, Defendant

Court: United States District Court, E.D. California

Date published: Aug 28, 2006

1:03-cv-05254-AWI-SMS-P (E.D. Cal. Aug. 28, 2006)

Opinion

1:03-cv-05254-AWI-SMS-P.

August 28, 2006

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 42) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 35) ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE TO BE SET FOR TRIAL

ANTHONY ISHII, District Judge

Plaintiff Alfonzo Tolbert ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.

On May 26, 2006, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within thirty days. On June 26, 2006, defendant Peeler ("defendant") filed an objection to the Magistrate Judge's Findings and Recommendations, and on July 24, 2006, plaintiff filed a response to defendant's objection.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

In the objections, defendant contends that the Medical Report created after the altercation shows plaintiff suffered no injury. However, plaintiff submitted evidence in the form of a verified amended complaint and declaration in which Plaintiff states defendant slammed his head into a brick wall, twisted plaintiff's arm, threw him to the floor, and repeatedly kicked plaintiff. Plaintiff states he sustained bruises and experienced pain in his face and body. In light of the evidence found in plaintiff's verified amended complaint and plaintiff's declaration, there is a disputed issue of fact regarding the extent of Plaintiff's injuries. Plaintiff's failure to formally dispute Defendants' proposed undisputed facts does not make these facts undisputed in light of Plaintiff's submitted evidence to the contrary. As such, summary judgment is not appropriate.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed May 26, 2006, is ADOPTED IN FULL; and,

2. Defendant's motion for summary judgment, filed December 14, 2005, is GRANTED IN PART and DENIED IN PART as follows:

a. Defendant's motion for summary adjudication on plaintiff's excessive force claim against him is DENIED; and,

b. Defendant's motion for summary adjudication on plaintiff's retaliation claim against him based on the cell searches on February 19, 2001, and March 5, 2001, is GRANTED; and

3. This matter is referred back to the Magistrate Judge to be set for trial.

IT IS SO ORDERED.