Spittal v. Jennings

68 F. App'x 93

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 19, 2003
• Docket: No. 02-17514; D.C. No. CV-00-01766-LKK
• Status: Published

Opinion

MEMORANDUM

**

George Spittal appeals pro se the district court’s orders dismissing for failure to state a claim and for failure to comply with a court order his 42 U.S.C. § 1983 action alleging that defendants violated his constitutional rights by discontinuing his substitute teaching assignment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998), and we review for abuse of discretion a dismissal for failure to comply with a court order, Henry v. Gill Indus., Inc., 983 F.2d 943, 949 (9th Cir.1993). We affirm.

The district court did not abuse its discretion by dismissing Spittal’s claims for -failure to comply with a court order because the district court warned Spittal of the consequence of failing to respond to defendants’ summary judgment motion and gave Spittal two opportunities to respond. See Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir.1994) (per curiam) (affirming grant of unopposed motion for summary judgment where plaintiff had previously been warned of consequence of failure to respond).

Contrary to Spittal’s contentions, the magistrate judge has authority to make findings and recommendations pursuant 28 U.S.C. § 636 and local rules because the magistrate judge’s findings are subject to the district court’s de novo review and the district court’s ultimate decision. See Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir.1991) (finding constitutional the referral practices of 28 U.S.C. § 636 and Local Rule 304(a) for the Eastern District of California).

The magistrate judge properly denied Spittal’s recusal motion because it was based on the magistrate judge’s adverse decisions. See Liteky v. United States, 510 U.S. 540, 549-51, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).

Spittal’s remaining contentions lack merit.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.