Opinion

(PC) Brown v. Kishbaugh

Court
District Court, E.D. California
Filed
Feb 8, 2024
Cited by
0 cases
Authority
More cited than 18.5%

“[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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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