United States District Court, C.D. California
February 10, 2015
KARL HUBER, Plaintiff,
CHRISTOPHER COULTER, et al., Defendants.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
GEORGE H. KING, District Judge.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. Plaintiff has filed Objections to the Report and Recommendation and defendants have filed a Response to the Objections.
Plaintiff contends that the Magistrate Judge erred by failing to consider the portion of plaintiff's declaration describing the interaction between Officer Coulter and Elena Melnikova. The Magistrate Judge properly deemed Coulter's description of the events uncontroverted because plaintiff was not present and there was no declaration or testimony by Melnikova. In his Objections, plaintiff contends that "he was indeed present." (Objections at 4.) Based on the evidentiary materials submitted by the parties, it is uncontroverted that plaintiff was in Melnikova's apartment at the time and was not on the scene.
Plaintiff also asserts that Melnikova "is available to testify at trial or via declaration to corroborate facts as necessary." (Objections at 4.) Plaintiff has neither provided a declaration by Melnikova nor explained his failure to obtain one. The Court notes that, according to defendants, Melnikova failed to appear at a properly noticed deposition. (Response to Objections, Exh. A.)
Having made a de novo review of those portions of the Report and Recommendation to which plaintiff has objected, the Court accepts the findings and recommendations of the Magistrate Judge.
IT IS HEREBY ORDERED that: (1) defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is GRANTED; and (2) judgment shall be entered dismissing this action with prejudice.