(PC) Ellesbury v. Fernandez

Opinion

1 2 3 4 5 6 7 10 11 CLARENCE VERNUE ELLESBURY, No. 2: 18-cv-2744 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 J. FERNANDEZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 2, 2020, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 . . . .”). ] The court has reviewed the file and the Magistrate Judge’s Findings and 2 || Recommendations. The court agrees with the Magistrate Judge’s determination that plaintiff did 3 || not exhaust his administrative remedies for his claims against defendant Bryant, as required by 4] 42US.C. § 1997e(a). See F&Rs at 5:9-8:19. The court also agrees with the Magistrate Judge’s 5 || determination that plaintiff has not cited evidence that a fact-finder could rely on to find that he 6 || suffered a physical injury as a result of the defendants’ conduct, as required by 42 U.S.C. 7 || § 1997e(e). See F&Rs at 18:26—-22:20. For these reasons, there is no genuine dispute of material 8 | fact for trial, and the defendants are entitled to judgment as a matter of law. 9 Defendants’ motion for summary judgment (ECF No. 79) is granted, and plaintiff's 10 || motion for partial summary judgment (ECF No. 82) is denied. The Clerk’s Office is directed to 11 | close the case. 12 | DATED: September 27, 2021. 13 14 15 CHIEF ED STATES DISTRICT JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28