Opinion
1:15-cv-00987-ADA-BAM (PC)
01-25-2023
JARED M. VILLERY, Plaintiff, v. RICHARD KENDALL, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(ECF NO. 182)
Plaintiff Jared M. Villery (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Kendall, Acosta, Jones, Guerrero, Woodward, and Grimmig for deliberate indifference in violation of the Eighth Amendment, and against Defendant Macomber for promulgation of a policy to deny single cell housing for inmates with serious mental disorders in violation of the Eighth Amendment. Plaintiff's claims arise out of allegations that he developed Post-Traumatic Stress Disorder (“PTSD”) while in the custody of the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff claims that at multiple institutions and over several years, his PTSD was not properly considered by prison officials in determining his housing status.
Erroneously sued as “Woodard.”
Effective December 12, 2022, Secretary Macomber has assumed the position of Secretary for the California Department of Corrections and Rehabilitation. The Court notes that under Federal Rule of Civil Procedure 25(d), Secretary Macomber should be substituted for former Secretaries Beard, Kernan, and Allison with respect to Plaintiff's claim for a violation of his rights based on a policy promulgated in the Secretary's official capacity.
On September 13, 2021, Defendants filed a motion for summary judgment. (ECF No. 170.) Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. (ECF No. 170 -7); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988).
On September 23, 2021, the assigned Magistrate Judge stayed this action pending Plaintiff's interlocutory appeal with the Ninth Circuit Court of Appeals, Case Number 21-15425. (ECF No. 171.) On October 19, 2022, upon resolution of the interlocutory appeal, the Magistrate Judge issued an order lifting the stay of this action and resetting the briefing schedule for Defendants' motion for summary judgment. (ECF No. 180.) Plaintiff was directed to file an opposition or statement of non-opposition to Defendants' motion for summary judgment within thirty days from the date of service of the Court's order, and was warned that failure to file an opposition or statement of non-opposition in compliance with the Court's order would result in dismissal of this action, with prejudice, for failure to prosecute. (Id. at 2.)
On December 2, 2022, following the expiration of the deadline for Plaintiff to file his opposition, Defendants filed a “Notice of Non-Opposition to Defendants' Motion for Summary Judgment,” notifying the Court that Defendants had not received an opposition to their motion for summary judgment and requesting that the Court dismiss this action with prejudice for failure to prosecute. (ECF No. 181.)
On December 6, 2022, the Magistrate Judge issued findings and recommendations recommending dismissal of this action, with prejudice, for failure to prosecute and for failure to obey a court order. (ECF No. 182.) Those findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen days after service. (Id. at 5.) No objections have been filed, and the deadline to do so has passed. Plaintiff has not otherwise communicated with the Court regarding this action.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's findings and recommendations are supported by the record and by proper analysis.
Accordingly, 1. The findings and recommendations issued on December 6, 2022, (ECF No. 182), are ADOPTED IN FULL;
2. This action is dismissed, with prejudice, for failure to prosecute and failure to obey a court order; and
3. The Clerk of the Court is directed to terminate all pending motions and close this case.
IT IS SO ORDERED.