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Fernando v. Marshall

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


February 17, 2009

LORETO L. FERNANDO, PETITIONER,
v.
JOHN MARSHALL, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

On 1/16/09, this court recommended dismissal of this action for petitioner's failure to keep the court apprised of his current address. See Local Rules 83-182(f) and 11-110 (E.D. Cal. 1997). In timely objections, petitioner states that his address has never changed. Although no explanation is offered for the documents that this court has properly served upon him at his mailing address which have been repeatedly returned by the prison (see docket regarding the entries for "mail returned" of Orders, filed on 11/13/08 and 11/24/08, docket entries # 9 and # 14 respectively), it may be that petitioner has no idea why they were returned. The Findings and Recommendations will be vacated. Respondent is cautioned that failure of prison officials to deliver the court's properly addressed mail to petitioner may result in sanctions assessed to respondent.

Petitioner indicates that he has received a motion to dismiss to which he has previously responded. The court has no record of petitioner's response to respondent's motion other than that which is contained in his 2/02/09 objections. If petitioner wishes to file a response to respondent's 1/07/09 motion to dismiss other than that contained in his 2/02/09 objections to the 1/16/09 Findings and Recommendations, he will be granted thirty days in which to do so. If he does do so, any further opposition will be deemed the only opposition to the motion, if he does not, the court will recognize the 2/02/09 objections as constituting his sole opposition to the motion.

Accordingly, IT IS ORDERED that:

1. The Findings and Recommendations, filed on 1/16/09 ( Docket #19), are hereby vacated;

2. The Clerk of the Court is directed to once again re-serve upon petitioner the Order, filed on 11/13/08 (# 9) and the Order, filed on 11/24/08 (# 14);

3. Respondent may be subject to sanctions if prison officials continue to fail to deliver the court's mail to petitioner when it is served upon him with the proper mailing address;

4. Petitioner is granted thirty days from the date of this Order to file his opposition to respondent's motion to dismiss, filed on 1/07/09 (# 19); should he fail to do so, his objections, filed on 2/02/09 (# 21), will constitute his sole opposition; should petitioner file a further opposition in response to this Order, any such filing will constitute his opposition in full.

20090217

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