IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 22, 2008
JOHN ERIC CHATMON, PLAINTIFF,
S. DOYLE, ET AL., DEFENDANTS.
Plaintiff is a prisoner without counsel suing for civil rights violations. See 42 U.S.C. § 1983. Currently pending before the court are plaintiff's objections to the August 18, 2008, findings and recommendations. For the reasons explained below, the court declines to vacate the findings and recommendations, but gives plaintiff time to show he attempted to comply with this court's orders.
On February 13, 2008, defendants Lysiak and Riddle filed a motion for summary judgment. See Fed. R. Civ. P. 56. On September 13, 2006, December 12, 2006, and May 24, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). Those orders also informed plaintiff of the requirements for filing an opposition to the pending motion and that failure to oppose such a motion might be deemed a waiver of opposition to the motion. Plaintiff failed to file an opposition or a statement of no opposition. On April 29, 2008, the court gave plaintiff time to file an opposition or a statement of no opposition, and explained the court's authority to dismiss this action for failure to comply with the applicable rules and this court's orders. Again, plaintiff did not file an opposition or a statement of no opposition. Thus, on August 11, 2008, the court found that plaintiff failed to comply with this court's rules and orders, and recommended that the action be dismissed. On August 21, 2008, plaintiff filed objections, asserting that in July 2008, he filed an opposition to defendants' motion and served a copy on counsel for the defendants. However, the court has no record that he filed an opposition. Thus, in order to avoid dismissal, he must demonstrate that he in fact attempted to file and serve an opposition, as he asserts. To do this, he may submit a complete copy of his opposition or a copy of a mail log showing that he delivered the opposition to prison officials for mailing to this court and to counsel for the defendants.
Accordingly, it is ORDERED that:
1. The court declines to vacate the August 11, 2008, findings and recommendations; and
2. Within 15 days of the date of this order, plaintiff shall submit either a complete copy of his opposition to defendants' motion for summary judgment or a copy of a July 2008 mail log showing that he submitted it to prison officials for delivery to the court and service on counsel for the defendants. Consider of the findings and recommendations is deferred pending plaintiff's compliance with the above. Plaintiff's failure to comply with this order will result in the findings and recommendations being resubmitted to the district judge for consideration.
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