Rankins v. Liu et al

Filing 67

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/8/2019 RECOMMENDING defendants' 53 motion for summary judgment be granted. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

NORMAN RANKINS,

12

Plaintiff,

13
14

No. 2:15-cv-1164 KJM DB P

v.

FINDINGS & RECOMMENDATIONS

ALEXANDER LIU,

15

Defendants.

16
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

17
18

action pursuant to 42 U.S.C. § 1983. On October 18, 2018 defendant filed a motion for summary

19

judgment pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. (ECF No.

20

53.) Plaintiff has not filed an opposition to the motion.
“A district court may not grant a motion for summary judgment simply because the

21
22

nonmoving party does not file opposing material, even if the failure to oppose violates a local

23

rule.” Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994) (citing Henry v. Gill Industries, Inc.,

24

983 F.2d 943, 950 (9th Cir. 1993)). However, where a local rule “does not require, but merely

25

permits the court to grant a motion for summary judgment, the district court has discretion to

26

determine whether noncompliance should be deemed consent to the motion.” Brydges, 18 F.3d at

27

652.

28

////
1

Local Rule 230(l) provides in part: “Failure of the responding party to file written

1
2

opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

3

the granting of the motion . . . .” On March 16, 2016, plaintiff was advised of the requirements

4

for filing an opposition to a dispositive pretrial motion and that failure to oppose such a motion

5

may be deemed a waiver of opposition to the motion. (ECF No. 19.)

6

After the time for filing an opposition expired, plaintiff was directed to show cause in

7

writing why this case should not be dismissed for his failure to file an opposition to defendant’s

8

motion for summary judgment. (ECF No. 63.) Shortly thereafter plaintiff moved for an

9

extension of time to file an opposition. (ECF No. 64.) The court granted plaintiff an additional

10

thirty days to file an opposition. (ECF No. 65.) Plaintiff did not file an opposition or request

11

additional time to file an opposition. Thereafter, the court issued a second order to show cause

12

directing plaintiff to file an opposition or explain in writing why this case should not be dismissed

13

for failure to file an opposition within fourteen days. (ECF No. 66.) Those fourteen days have

14

now elapsed, and plaintiff has not filed an opposition, requested an extension of time, or

15

otherwise responded to the order to show cause. Accordingly, plaintiff's failure to oppose should

16

be deemed a waiver of opposition to the granting of the motion.
In accordance with the above, IT IS HEREBY RECOMMENDED that defendants’

17
18

motion for summary judgment (ECF No. 53) be granted.

19

These findings and recommendations are submitted to the United States District Judge

20

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

21

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

22

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

23

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

24

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

25

////

26

////

27

////

28

////
2

1

The parties are advised that failure to file objections within the specified time may waive

2

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

3

Dated: March 8, 2019

4
5
6
7
8
9

DLB:12
DLB:1/Orders/Prisoner/Civil.Rights/rank1164.46dmsj

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3