The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
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 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On September 15, 2009, the magistrate judge filed findings and recommendations herein 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 fifteen days from the date the findings and recommendations were served. The magistrate judge has recommended that defendants Miranda's and Baillie's motions for summary judgment be granted, and that plaintiff's cross-motion be denied. Plaintiff has filed objections to the findings and recommendations.
Plaintiff objects to the magistrate judge's finding that there was no evidence of the substance of a conversation between defendant Miranda and plaintiff's cell mate which purportedly substantiates plaintiff's claim. Plaintiff's allegations as they related to Miranda are that he retaliated against plaintiff for having filed a grievance against Miranda. Plaintiff alleges that approximately two months after the filing of the grievance Miranda conducted a cell search of plaintiff's cell while plaintiff was at the showers. Just prior to the search, Miranda allegedly asked plaintiff's cell mate which property belonged to plaintiff and which belonged to the cell mate. Allegedly, Miranda then disheveled plaintiff's belongings but did not do so with those of his cell mate. Plaintiff claims that Miranda's conduct was motivated by plaintiff having filed a grievance against him.
The findings and recommendations point out that plaintiff submitted no admissible evidence as to the statements during conversation between Miranda and the cell mate, and further note that the plaintiffs hearsay account of what occurred cannot defeat summary judgment. With his objections, plaintiff has now submitted the declaration of the cell mate, Washington. The newly filed declaration recounts the conversation between himself and Miranda and is consistent with plaintiff's allegations noted above. Defendant Miranda has not denied conducting the search in the manner plaintiff alleges and the factual issue is whether there is evidence, which if believed, could establish that Miranda selectively targeted plaintiff's belongings based on retaliation for plaintiff having filed a grievance. If plaintiff's new evidence is to be believed, a reasonable fact finder could conclude that Miranda's motive was retaliatory. Otherwise stated, evidence of the essential element found by the magistrate judge to have been missing has now been produced by plaintiff.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis as to all claims except that Baillee searched plaintiff's cell in retaliation for plaintiff's having filed a grievance against him.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 15, 2009, are partially adopted as follows;
A. Defendant Baillie's April 4, 2008, motion for summary judgment is granted;
B. Defendant Miranda's April 3, 2008, motion for summary judgment is granted as to all but one claim;
2. Miranda's motion for summary judgment is denied as to plaintiff's claim that the cell search was retaliatory;
3. Plaintiff's April 24, 2009, cross-motion for summary judgment is denied.
4. This matter is remanded to the magistrate judge for further ...