Light v. Lizarraga et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 08/08/19 RECOMMENDING that defendants' motion for summary judgment 27 be granted. Motion for Summary Judgment 27 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THURL H. LIGHT, II,
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Plaintiff,
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No. 2:16-cv-2256 MCE DB P
v.
FINDINGS AND RECOMMENDATIONS
J. LIZARRAGA, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants committed excessive force and
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retaliation against him.
On April 8, 2019 defendants filed a motion for summary judgment pursuant to Federal
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Rule of Civil Procedure 56. (ECF No. 27.) Plaintiff did not file an opposition or request
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additional time to file an opposition. By order dated May 29, 2019, plaintiff was ordered to either
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file an opposition or show cause in writing why this action should not be dismissed for failure to
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file an opposition to the summary judgment motion. (ECF No. 29.) The court’s order was
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returned because plaintiff had not updated his address as required by Local Rule 182(f). A search
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of the California Department of Corrections and Rehabilitation’s inmate locator revealed that
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plaintiff was transferred to California Health Care Facility. (ECF No. 30.) The court’s order was
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served on plaintiff at his updated address. Since that time, plaintiff has not filed an opposition,
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requested additional time to file an opposition, or otherwise responded to the court’s order.
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“A district court may not grant a motion for summary judgment simply because the
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nonmoving party does not file opposing material, even if the failure to oppose violates a local
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rule.” Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994) (citing Henry v. Gill Industries, Inc.,
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983 F.2d 943, 950 (9th Cir. 1993)). However, where a local rule “does not require, but merely
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permits the court to grant a motion for summary judgment, the district court has discretion to
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determine whether noncompliance should be deemed consent to the motion.” Brydges, 18 F.3d at
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652.
Local Rule 230(l) provides in part: “Failure of the responding party to file written
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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to
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the granting of the motion . . . .” On February 9, 2018, plaintiff was advised of the requirements
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for filing an opposition to a dispositive pretrial motion and that failure to oppose such a motion
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may be deemed a waiver to opposition to the motion. (ECF No. 12.) Accordingly, plaintiff's
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failure to oppose should be deemed a waiver of opposition to the granting of the motion.
In accordance with the above, IT IS HEREBY RECOMMENDED that defendants’
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motion for summary judgment (ECF No. 27) be granted.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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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 response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: August 8, 2019
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DLB:12
DLB1/Orders/Prisoner.Civil Rights/ligh2256.46.dism
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