Jayne v. Sprint PCS et al

Filing 120

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/11/10 RECOMMENDING that 97 MOTION for SUMMARY JUDGMENT be granted and this action be dismissed with prejudice. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 21 days.(Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. SPRINT PCS, INC., et. al., Defendants. / Plaintiff is a state prisoner proceeding without counsel with an action pursuant to 42 U.S.C. § 1983. On April 8, 2010, the court ordered plaintiff to file an opposition to defendants' motion for summary judgment that was filed on October 14, 2009, within 14 days, or the undersigned would recommend that this action be dismissed with prejudice. Dkt. No. 119. The court notes that plaintiff has received several extensions to file an opposition. Dkts. No. 109, 112, 119. The 14 days has since passed and plaintiff has not filed an opposition to the motion for summary judgment or otherwise responded to the court's order. 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 rule. Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 1 FINDINGS & RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL AARON JAYNE, Plaintiff, No. 2:07-cv- 2522 LKK KJN P

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652 (9th Cir. 1994), citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). However, when the local rule does not require, but merely permits the court to grant a motion for summary judgment, the district court has discretion to determine whether noncompliance should be deemed consent to the motion. Id. In the instant case, plaintiff has been granted several extensions and warned that his failure to oppose the motion for summary judgment would result in the case being dismissed with prejudice. Based on plaintiff's failure to file an opposition, the court concludes that plaintiff has consented to defendants' motion for summary judgment. In the alternative, the court finds that defendants' motion has merit. Accordingly, IT IS HEREBY RECOMMENDED, that defendants October 14, 2009 motion for summary judgement (Dkt. No. 97) be granted and this action be dismissed with prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: May 11, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

jayn.2522.f&r

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