Topete v. County of Sacramento, et al

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/13/11 ORDERING the clerk of the court shall assign a district judge to this case. U.S. District Judge John A. Mendez randomly assigned to this action. Also, RECOMMENDING that defendants' 04/22/11 24 Motion for Summary Judgment be granted. Motion for Summary Judgment 24 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M) Modified on 6/15/2011 (Plummer, M).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCO ANTONIO TOPETE,

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Plaintiff,
vs.
ERIK MANESS, et al.,

ORDER and

Defendants.

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No. CIV S-09-3539 GGH (TEMP) P

FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendant’s motion for summary judgment filed

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April 22, 2011.

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Plaintiff has not filed an opposition to defendant’s motion. In the order directing

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service filed May 7, 2010, the court stated that “[i]f plaintiff does not serve and file a written

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opposition to the motion or a request to postpone consideration of defendants’ motion, the court

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may consider the failure to act as a waiver of opposition to defendant’s motion.” See Local Rule

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230 (l). Defendant’s notice of motion also directed plaintiff to Local Rule 230 for information

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regarding summary judgment.

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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
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rule. Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 652

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(9th Cir. March 9, 1994), citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993).

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However, when the local rule does not require, but merely permits the court to grant a motion for

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summary judgment, the district court has discretion to determine whether noncompliance should

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be deemed consent to the motion. Id.

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In the instant case, plaintiff has been warned that his failure to oppose a motion

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for summary judgment may be deemed a waiver of opposition to the motion. Based on

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plaintiff’s failure to file an opposition, the court concludes that plaintiff has consented to

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defendant’s motion for summary judgment. In the alternative, the court finds that defendant’s

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motion has merit.

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Accordingly, IT IS HEREBY ORDERED that the Clerk shall assign a district
judge to this case.

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IT IS HEREBY RECOMMENDED that defendant’s April 22, 2011, motion for
summary judgment be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 13, 2011
/s/ Gregory G. Hollows

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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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GGH:de
tope3539.46

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