(PC) Brown v. Sisto et al, No. 2:2007cv01949 - Document 54 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 09/15/09 recommending that defendants' 07/24/09 motion for summary judgment be granted. MOTION for SUMMARY JUDGMENT 50 referred to Judge Frank C. Damrell. Objections due within 20 days. (Plummer, M)
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(PC) Brown v. Sisto et al Doc. 54 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RICKY LAMONT BROWN, 11 Plaintiff, 12 vs. 13 No. CIV S-07-1949 FCD GGH P D.K. SISTO, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment filed 18 July 24, 2009. On August 4, 2009, defendants served plaintiff with the summary judgment 19 motion to his most current address. 20 Plaintiff has not filed an opposition to defendants’ motion. In the order directing 21 service filed February 6, 2009, the court stated that “[i]f plaintiff does not serve and file a written 22 opposition to the motion or a request to postpone consideration of defendants’ motion, the court 23 may consider the failure to act as a waiver of opposition to defendant’s motion.” See Local Rule 24 78-230 (m). Defendants’ notice of motion also directed plaintiff to Local Rule 78-230 for 25 information regarding summary judgment. 26 \\\\\ 1 Dockets.Justia.com 1 A district court may not grant a motion for summary judgment simply because the 2 nonmoving party does not file opposing material, even if the failure to oppose violates a local 3 rule. Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 652 4 (9th Cir. March 9, 1994), citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). 5 However, when the local rule does not require, but merely permits the court to grant a motion for 6 summary judgment, the district court has discretion to determine whether noncompliance should 7 be deemed consent to the motion. Id. 8 In the instant case, plaintiff has been warned that his failure to oppose a motion 9 for summary judgment may be deemed a waiver of opposition to the motion. Based on 10 plaintiff’s failure to file an opposition, the court concludes that plaintiff has consented to 11 defendants’ motion for summary judgment. In the alternative, the court finds that defendants’ 12 motion has merit. 13 14 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ July 24, 2009, motion for summary judgment be granted. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 17 days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 20 shall be served and filed within ten days after service of the objections. The parties are advised 21 that failure to file objections within the specified time may waive the right to appeal the District 22 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: September 15, 2009 /s/ Gregory G. Hollows 24 UNITED STATES MAGISTRATE JUDGE 25 GGH:035 brow1949.46 26 2
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