“[D]eterminations of law 26 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 27 ///// 28 1 | ....°
How later courts described this case
- “[D]eterminations of law 26 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 27 ///// 28 1 | ....°
- weighing relevant factors in a similar case
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MARK ANTHONY BROWN, No. 2:21-cv-00149-KJM-EFB (PC)
12 Plaintiff,
13 v. ORDER
14 C. KISHBAUGH, et al.,
15 Defendants.
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 28, 2023, the magistrate judge filed findings and recommendations, which
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were served on all parties and which contained notice to all parties that any objections to the
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findings and recommendations were to be filed within fourteen days. Neither party has filed
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objections to the findings and recommendations.
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The court presumes that any findings of fact are correct. See Orand v. United States,
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602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed
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de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law
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by the magistrate judge are reviewed de novo by both the district court and [the appellate] court
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1 | ....°). Having reviewed the file, the court finds the findings and recommendations to be
2 || supported by the record and by the proper analysis. The court understands the Magistrate Judge’s
3 || conclusion that plaintiff acted “willfully” as a finding that plaintiff could have responded to
4 | discovery requests on time but did not and agrees with that assessment of the record. See Fjelstad
5 || v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985) (defining “willfully”). The court
6 || also agrees dismissal is an appropriate sanction for plaintiff's long delays and failures to respond
7 || despite several warnings and extensions of deadlines, even though dismissal is a severe sanction,
8 || especially in a pro se civil rights action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-63 (9th Cir.
9 || 1992) (weighing relevant factors in a similar case).
10 Accordingly, IT IS HEREBY ORDERED that:
11 1. Defendants’ motion for terminating sanctions (ECF No. 45) is GRANTED;
12 2. All other outstanding motions are denied as moot;
13 3. Plaintiffs action is dismissed with prejudice; and
14 4. The Clerk of Court is directed to close the case.
15 || DATED: February 7, 2024.
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18 CHIEF ED STATES DISTRICT JUDGE
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