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Davis v. Justin

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 27, 2008

DON ANGELO DAVIS, PLAINTIFF,
v.
SGT. N. JUSTIN, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On July 9, 2007, in its order directing the United States Marshal to serve process upon defendant, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure, including the requirement that plaintiff must show proof of his claims. 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). On that date, the Clerk also mailed to plaintiff a copy of the Local Rules.

On March 6, 2008, defendant filed a motion for summary judgment. See Fed. R. Civ. P. 56. Plaintiff failed to file an opposition. On April 29, 2008, the court gave plaintiff 20 days to file an opposition or a statement of no-opposition to defendant's motion. The court explained that failure to file an opposition or a statement of no opposition could result in a recommendation that this action be dismissed under the authority of Rule 41(b). Plaintiff was also warned that the court could recommend that an action be dismissed when a party disobeys an order or the Local Rules.

On May 9, 2008, plaintiff filed a document styled "opposition." Despite the court's previous orders advising plaintiff of his obligations in opposing a motion for summary judgment, his May 9, 2008, "opposition" fails to satisfy those obligations, as it offers no proof of his claims and fails to identify any genuine dispute of material fact. See L.R. 56-260(b) ("Any party opposing a motion for summary judgment . . . shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed . . . ."). After warnings from the court and an extension of time to file an opposition, plaintiff continues to disobey the orders of this court and has therefore failed to prosecute this action. Thus, this action must be dismissed.

For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20080827

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