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Lorenzo Gregge, Jr v. California Department of Corrections

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


March 26, 2013

LORENZO GREGGE, JR.,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, appeals the court's final judgment entered on February 6, 2013. The matter was referred to the undersigned by the Ninth Circuit Court of Appeals to certify whether the appeal is taken in good faith. See 28 U.S.C. § 1915(a)(3). Having reviewed the entire file, the court concludes that the appeal is not taken in good faith.

This case was first before the appellate court in 9th Cir. case no. 10-16239. On July 2, 2011, the Ninth Circuit issued a memorandum disposition reversing this court's dismissal of plaintiff's action and remanding for further proceedings. In that disposition, the appellate court defined plaintiff's claims as follows: "Gregge alleged that defendants implemented a policy that resulted in the denial of his constitutional rights." Following remand, defendants responded to the complaint by way of a motion to dismiss for failure to exhaust administrative remedies. The court granted defendants' motion, finding that plaintiff had not filed any inmate grievances complaining of implementation of policies which resulted in a constitutional violation.

Notably, while plaintiff filed an opposition to defendants' motion to dismiss, he did not file any objections to the court's findings and recommendations that the motion be granted. The failure to file objections to findings and recommendations may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Given plaintiff's failure to object to findings and recommendations when provided an opportunity to do so, the court finds that the current appeal is not taken in good faith.

Accordingly, IT IS HEREBY ORDERED that:

1. This appeal is not taken in good faith; and

2. The Clerk of the Court is directed to serve a copy of this order on the Pro Se Unit at the Ninth Circuit Court of Appeals.

20130326

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