(PC) Lipscomp v. Brimhall et al, No. 2:2009cv01182 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/30/10 recommending that 17 MOTION for SUMMARY JUDGMENT be granted. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Lipscomp v. Brimhall et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JESSE LIPSCOMB, 11 12 Plaintiff, No. CIV S-09-1182 GEB GGH P vs. 13 TROY BRIMHALL, 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 June 16, 2010. 19 Plaintiff has not filed an opposition to defendants’ motion. In the order directing 20 service filed August 20, 2009, the court stated that “[i]f plaintiff does not serve and file a written 21 opposition to the motion or a request to postpone consideration of defendants’ motion, the court 22 may consider the failure to act as a waiver of opposition to defendant’s motion.” See Local Rule 23 230 (l). Defendants’ notice of motion also directed plaintiff to Local Rule 230 for information 24 regarding summary judgment. 25 26 A district court may not grant a motion for summary judgment simply because the nonmoving party does not file opposing material, even if the failure to oppose violates a local 1 Dockets.Justia.com 1 rule. Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 652 2 (9th Cir. March 9, 1994), citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). 3 However, when the local rule does not require, but merely permits the court to grant a motion for 4 summary judgment, the district court has discretion to determine whether noncompliance should 5 be deemed consent to the motion. Id. 6 In the instant case, plaintiff has been warned that his failure to oppose a motion 7 for summary judgment may be deemed a waiver of opposition to the motion. Based on 8 plaintiff’s failure to file an opposition, the court concludes that plaintiff has consented to 9 defendants’ motion for summary judgment. In the alternative, the court finds that defendants’ 10 motion has merit.1 11 12 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ June 16, 2010 motion for summary judgment be granted. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 shall be served and filed within fourteen days after service of the objections. The parties are 19 advised that failure to file objections within the specified time may waive the right to appeal the 20 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: August 30, 2010 /s/ Gregory G. Hollows 22 UNITED STATES MAGISTRATE JUDGE 23 GGH:035 lips1182.46 24 25 1 26 It also appears that plaintiff has not responded to requests for admissions which essentially negate plaintiff’s case. 2