(PC) Ellesbury v. Fernandez

Opinion

CLARENCE VERNUE ELLESBURY, No. 2: 18-cv-2744 KJM KJN P Plaintiff, v. ORDER J. FERNANDEZ, et al., Defendants. 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 December 2, 2020, 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. Neither party has filed objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). ] The court has reviewed the file and the Magistrate Judge’s Findings and Recommendations. The court agrees with the Magistrate Judge’s determination that plaintiff did 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 determination that plaintiff has not cited evidence that a fact-finder could rely on to find that he suffered a physical injury as a result of the defendants’ conduct, as required by 42 U.S.C. § 1997e(e). See F&Rs at 18:26—-22:20. For these reasons, there is no genuine dispute of material fact for trial, and the defendants are entitled to judgment as a matter of law. Defendants’ motion for summary judgment (ECF No. 79) is granted, and plaintiff's motion for partial summary judgment (ECF No. 82) is denied. The Clerk’s Office is directed to close the case. DATED: September 27, 2021. CHIEF ED STATES DISTRICT JUDGE