(PC) Alexander v. Solano County Detention Facility, et al., No. 2:2013cv02566 - Document 64 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/4/16 RECOMMENDING that Defendants motion for summary judgment (ECF No. 59 ) be denied as moot; and this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES S. ALEXANDER, 12 Plaintiff, 13 14 15 16 17 v. No. 2:13-cv-2566 GEB CKD P FINDINGS AND RECOMMENDATIONS SOLANO COUNTY DETENTION FACILITY, et al., Defendants. Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. On October 21, 2015, defendants filed their second motion for summary 19 judgment in this action. (ECF No. 59.) Plaintiff did not timely oppose the motion. On December 20 9, 2015, plaintiff was ordered to file an opposition or a statement of non-opposition to defendants’ 21 motion within thirty days. Plaintiff was informed that failure to comply with this order would 22 result in dismissal of this action pursuant to Fed. R. Civ. P. 41(b). (ECF No. 61.) 23 The thirty day period has now expired, and plaintiff has not filed an opposition to the 24 pending motion. Multiple times in this action, plaintiff has been advised of the procedural 25 requirements for opposing summary judgment. (ECF Nos. 15, 22-1 & 59-10; see L.R. 260(b).) 26 Plaintiff has made no attempt to comply with these requirements. Rather, he has filed a one-page 27 “motion for summary judgment” supported by a one-page declaration. (ECF No. 62.) This 28 document is the same one plaintiff filed on March 26, 2015, except that plaintiff has now signed 1 1 it. (Compare ECF No. 39 with ECF No. 62.) Plaintiff’s recycled declaration does not 2 meaningfully address the evidence set forth in defendants’ motion, nor does his two-page filing 3 meet the procedural rules for opposing summary judgment. 4 As plaintiff has neither complied, nor made a good-faith effort to comply, with the 5 December 9, 2015 order, the undersigned will recommend that this action be dismissed pursuant 6 to Federal Rule of Civil Procedure 41(b). See Fingerhut Corp. v. Ackra Direct Mktg. Corp., 86 7 F.3d 852, 856–57 (8th Cir. 1996) (stating that pro se representation does not excuse a litigant 8 from complying with court orders); Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) 9 (explaining that courts should liberally construe pro se plaintiffs’ legal arguments and strictly 10 construe their compliance with procedural requirements); see also Carter v. Comm’r of Internal 11 Revenue, 784 F.2d 1006, 1008–09 (9th Cir. 1986) (noting that pro se plaintiffs must follow the 12 rules of the court). 13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 14 1. Defendants’ motion for summary judgment (ECF No. 59) be denied as moot; and 15 2. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be filed and served within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: February 4, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 / alex2566.46fr 2

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