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Carlos Hendon v. Reed

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 21, 2011

CARLOS HENDON,
v.
REED, ET AL.,
DEFENDANTS.
PLAINTIFF,

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MATTER BACK TO MAGISTRATE JUDGE

ORDER VACATING FINDINGS AND RECOMMENDATIONS, AND REFERRING (ECF No.42) ORDER DEEMING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VACATED FROM THE COURT'S CALENDAR PENDING FURTHER PROCEEDINGS (ECF No.36)

Plaintiff Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the second amended complaint, filed February 25, 2008, against Defendants Lopez, Granillo, and Julie B. ("Defendants") for violation of the Eighth Amendment. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On July 9, 2010, Defendants filed a motion for summary judgment. Plaintiff filed an opposition on August 2, 2010. The Magistrate Judge issued findings and recommendations on January 31, 2011, recommending that Defendants' motion for summary judgment be granted. The parties were given thirty days to file objections and no objections were filed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court vacates the findings and recommendations. The Court has reviewed the second amended complaint and although Defendants' summary judgment motion frames Plaintiff's claim as one for excessive force without objection from Plaintiff, the Court finds that the claim in this action may be more appropriately analyzed as one for unconstitutional conditions of confinement, which entails review under a different legal standard.

Accordingly, the Court refers this action back to the Magistrate Judge for further review of the second amended complaint and Defendants' motion for summary judgment. To the extent appropriate, the Magistrate Judge shall issue new findings and recommendations and/or orders. In light of 28 U.S.C. § 476(a)(1), the Civil Justice Reform Act, Defendants' motion for summary judgment shall be deemed vacated from the Court's calendar pending resolution of the issues raised in this order.*fn1

Accordingly, it is HEREBY ORDERED that:

1. The findings and recommendations, filed January 31, 2011, are VACATED;

2. The action is REFERRED BACK to the Magistrate Judge for further proceedings consistent with this order; and

3. Defendants' motion for summary judgment is DEEMED VACATED from the Court's calendar pending resolution of the issues raised in this order.

IT IS SO ORDERED.


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