(PC) Sherman v. Ortiz-Diaz

Opinion

STANLEY SHERMAN, No. 1:23-cv-00289-KES-BAM (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT v. DEFENDANT’S MOTION TO DISMISS ORTIZ-DIAZ, (Doc. 27) Defendant. Plaintiff Stanley Sherman is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On January 25, 2024, the assigned magistrate judge issued findings and recommendations recommending that defendant’s motion to dismiss be granted and this action be dismissed, with prejudice, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Doc. 27. The magistrate judge found that plaintiff had pled he did not instigate the violence on June 16, 2022, which is contrary to a judicially noticed Rules Violation Report indicating that plaintiff pleaded guilty to instigating the violence by attacking another inmate and lost 61 days of credit as a result. Id. at 7–8. A finding by this court that plaintiff did not instigate the violence on June 16, 2022, would call into question the disciplinary loss of credits, in violation of Heck, and a plaintiff cannot recover on an excessive force claim when he instigated the violence. See Cunningham v. Gates, 312 F.3d 1148, 1155 (9th Cir. 2002). The magistrate judge therefore found that amendment would be futile. Jd. at9. The findings and recommendations were served on the parties, and contained notice that any objections were to be filed within fourteen (14) days. Jd. at 10. No objections were filed, and the deadline to do so has passed. See docket. In accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and proper analysis. Accordingly, IT IS HEREBY ORDERED: 1. The findings and recommendations issued on January 25, 2024, Doc. 27, are adopted in full; 2. Defendant Ortiz-Diaz’s motion to dismiss, Doc. 11, is granted; 3. This action is dismissed, with prejudice, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), without leave to amend; and 4. The Clerk of the Court is directed to close this case. TIS SO ORDERED. _ Dated: _ June 26, 2024 4h UNITED STATES DISTRICT JUDGE