The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment,*fn1 filed on 5/09/07.
Plaintiff has not filed an opposition to defendants' motion. In the order directing service filed 5/25/01,*fn2 the court stated that the failure to oppose, inter alia, motions for summary judgment, "may be deemed a waiver of opposition to the motion." The court therein directed that motions, including those made pursuant to Fed. R. Civ. P. 56, must be briefed according to Local Rule 78-230(m). In addition, specifically as to a motion for summary judgment, the court stated that "[i]f plaintiff does not serve and file a written opposition to the motion or a request to postpone consideration of defendants' motion, the court may consider the failure to act as a waiver of opposition to defendant's motion and may grant the motion." Defendants' notice of motion also directed plaintiff to Local Rule 78-230(m) for information regarding summary judgment.
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 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. March 9, 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 warned that his failure to oppose a motion for summary judgment may be deemed a waiver of opposition to the motion. The court incorporates by reference herein the Order, filed on 1/31/08, wherein the undersigned observed, inter alia, in denying plaintiff's motion to compel discovery from non-defendants that:
[T]his court has been engaged for years in seeking to assist plaintiff Johnson in obtaining the legal material he claims that he needs to oppose defendants' motion for summary judgment. If, in fact, a large portion of the material has been lost or destroyed [during] Capogreco's transits to various prisons, there is little this court can do. Moreover, plaintiff does not explain why it is that he cannot set forth in a declaration, under penalty of perjury, that, for example, he filed grievances as to specific medical conditions that went unanswered. Moreover, over the years, plaintiff has filed numerous exhibits in filings in this court. It is unclear whether he has reviewed the filings to determine whether any earlier exhibits could be identified and/or submitted in opposition to the summary judgment motion. Plaintiff simply has provided no basis for this court to order non-defendants to compel discovery that is inadequately described and that may simply no longer exist. Plaintiff's motion to compel must be denied.
Order, filed on 1/31/08, p. 9.
Nevertheless, as to the pending summary judgment motion, the court stated: Plaintiff does not explain how, even if the court were to vacate the motion for summary judgment permanently and set the matter for trial, how plaintiff would proceed to trial without the same exhibits he claims to need for his opposition. In order to resolve this matter once and for all, the court will now direct defendants to provide plaintiff, within 10 calendar days, with copies of all the documents in his prison medical files to the extent that they have not been provided in support of the motion for summary judgment, and copies of any and all medically related grievances he has filed, whether located in his central file or elsewhere, for the period of time at issue herein, beginning with his transfer to HDSP on October 19, 1998, until September 8, 2000, when the original complaint in this action was filed.
Plaintiff was thereafter directed, within 30 days, to file his substantive opposition to the pending motion for summary judgment and explicitly cautioned that failure to do so would be deemed a waiver of opposition by plaintiff. Id., at 11. On 2/11/08, counsel for defendants submitted a declaration of compliance with the court's 1/31/08 Order, declaring under penalty of perjury, that plaintiff had been served, as of 2/07/08, with all of his inmate appeals constituting medically related grievances "known to exist whether located in his central file or elsewhere, for the period of time beginning with his transfer to HDSP on October 19, 1998, until September 8, 2000," specifically identifying each such grievance. Declaration of John W. Riches II, filed on 2/11/08, at ¶¶ 5-6. Moreover, defendants' counsel stated that, on 2/07/08, he had also caused plaintiff to be served with his entire medical file, including dental and mental health records through 6/15/01. Id. at ¶ 7.
Notwithstanding defendants' evident compliance with the 1/31/08 Order (# 168), plaintiff has not done so. Plaintiff has not only failed to submit a substantive opposition to the pending dispositive motion, he has failed to communicate with the court in any way since the filing of the court's 1/31/08 Order. This court is far too burdened with cases that are actively prosecuted to attempt to patch together an opposition for a plaintiff who has wholly abdicated his responsibility to pursue his case. Nor would it be appropriate for this court to do so.
Based on plaintiff's failure to comply with the court's order and failure to file any substantive opposition, the court concludes that plaintiff has waived opposition and consented to defendants' motion for summary judgment. In the alternative, the court has reviewed defendants' motion, including, inter alia, the supporting declarations of two individuals who are not defendants: Dr. Charles Lee, Chief Medical Officer at Salinas Valley State, who appears to have conducted a comprehensive review of plaintiff's extensive medical records (which have also been submitted), as well as CDCR High Desert State Prison Senior Psychologist Timothy Nolan, Ph.D, who focused on a review of plaintiff's mental health services record, and find the motion has merit.
Accordingly, IT IS HEREBY RECOMMENDED that defendants' unopposed motion for summary judgment, filed on 5/09/07 (# 173), be granted and judgment be entered for defendants.
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 twenty 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 reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to ...