(PC) Puckett v. Baraona

Opinion

1 2 3 4 5 6 7 10 11 DURRELL ANTHONY PUCKETT, No. 1:21-cv-01448-KES-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING 13 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 BARAONA, et al., Docs. 71, 116 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s second amended 19 complaint, Doc. 83, against: (1) defendants Baraona, Burnitzki, Leos, Hernandez, and Diaz for 20 excessive force in violation of the Eighth Amendment; (2) defendant Leos for sexual assault in 21 violation of the Eighth Amendment; and (3) defendants A. Ruiz, E. Ruiz, Meier, Gutierrez, 22 Allison (Cronister), and T. Price for failure to protect in violation of the Eighth Amendment. The 23 matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 24 Local Rule 302. 25 On February 21, 2025, the assigned magistrate judge issued findings and 26 recommendations that plaintiff’s motion for summary judgment, Doc. 71, be denied. Doc. 116. 27 The findings and recommendations were served on the parties and contained notice that any 28 objections must be filed within fourteen days after service. Id. Plaintiff timely filed objections 1 on March 6, 2025, and March 7, 2025, respectively. Docs. 117, 120. No other objections were 2 filed, and the time to do so has passed. 3 In his objections filed March 6, 2025, plaintiff contends that there is audio/video 4 surveillance from the incident that proves plaintiff’s allegations. Doc. 117. In his objections filed 5 March 7, 2025, plaintiff reiterates his request for the Court to review body worn cameras and 6 audio/video surveillance. Doc. 120. Plaintiff’s objections are unpersuasive. The audio and video 7 surveillance referenced by plaintiff, if it exists, was not presented to the Court on the motion for 8 summary judgment or otherwise during the pendency of this action, and therefore cannot be relied 9 upon to find summary judgment in plaintiff’s favor. As discussed in the findings and 10 recommendations, the evidence relied upon in the motion for summary judgment offers 11 contradictory versions of the events at issue. Doc. 116 at 7–8. The Court may not assess the 12 credibility of witnesses or weigh the evidence on summary judgment. See Soremekun v. Thrifty 13 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Such an assessment is for the trier of fact.1 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 15 novo review of the case. Having carefully reviewed the file, the Court concludes that the findings 16 and recommendations are supported by the record and by proper analysis. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26

27 1 Plaintiff’s objections also request for attorney fees and legal supplies. The magistrate judge already denied such a request made in a separate motion by plaintiff, filed March 6, 2025. Docs. 28 118, 119. 1 Accordingly, IT IS ORDERED that: 2 1. The findings and recommendations issued on February 21, 2025, Doc. 116, are 3 ADOPTED IN FULL; 4 2. Plaintiff's motion for summary judgment, Doc. 71, is DENIED; and 5 3. This matter shall be set for a jury trial on plaintiffs claims against: (1) defendants 6 Baraona, Burnitzki, Leos, Hernandez, and Diaz for excessive force in violation of the 7 Eighth Amendment; (2) defendant Leos for sexual assault in violation of the Eighth 8 Amendment; and (3) defendants A. Ruiz, E. Ruiz, Meier, Gutierrez, Allison (Cronister), 9 and Price for failure to protect in violation of the Eighth Amendment. 10 4. This matter is referred back to the assigned magistrate judge for further proceedings. 11 12 13 | □□ □□ SO ORDERED. _ 14 Dated: _ March 24, 2025 4h UNITED STATES DISTRICT JUDGE

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