Charles Wayne Johnson, Senior, Plaintiff-appellant, v. P. Lamont; Calipatria State Prison, Defendants-appellees, 98 F.3d 1346 (9th Cir. 1996)

MEMORANDUM^** 

California state prisoner Charles Wayne Johnson, Senior, appeals pro se the district court's summary judgment in favor of defendants in his 42 U.S.C. § 1983 action. He contends the district court erred when it denied his motions for: (1) a default judgment; (2) an enlargement of time to file an opposition to summary judgment; and (3) leave to file a second amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Although Johnson never requested that Lamont waive personal service, Lamont filed an answer within sixty days after counsel waived personal service on his behalf. Under these circumstances, we are satisfied that the district court did not abuse its discretion when it denied Johnson's motion for a default judgment. See Fed. R. Civ. P. 4(d) (3).

Johnson contends the district abused its discretion when it denied his motions for an extension of time to file an opposition to summary judgment and for leave to file a second amended complaint. We disagree.

On June 21, 1995, the district court entered summary judgment in favor of defendant Lamont and dismissed, without prejudice, Johnson's other claims for failure to serve the proper defendants. On June 23, 1995, the district court denied Johnson's motion for an enlargement of time to file an opposition to summary judgment, noting that nothing Johnson had submitted changed its conclusion that Lamont was entitled to summary judgment.

For the purposes of this disposition, we assume that Johnson had valid reasons for requesting an enlargement of time. Johnson, however, has failed to produce any evidence contradicting that nurse Lamont sedated Johnson on orders of Dr. Santiago. See Fed. R. Civ. P. 56(e).

Johnson's contention that the district court abused its discretion when it refused to file his second amended complaint is moot. In Johnson's second amended complaint, he alleges that Lamont sedated him for malicious and vindictive purposes and then falsified medical records. Johnson's unsupported allegations are not evidence. See Fed. R. Civ. P. 56(e). Because Johnson has failed to produce any evidence contradicting that nurse Lamont sedated Johnson on orders of Dr. Santiago, see id., we affirm the district court's order of summary judgment in favor of defendant Lamont, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

AFFIRMED.