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King v. Sisto

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


July 7, 2009

MAILLIARD KING, PLAINTIFF,
v.
D. K. SISTO, WARDEN, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2009, defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). By order filed May 6, 2009, plaintiff's request for an extension of time to file an opposition to the motion was granted and plaintiff was given thirty days from the date of the order in which to file and serve such opposition. That thirty days period has expired and plaintiff has not filed any response to defendants' motion.*fn1

Local Rule 78-230(m) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." On October 24, 2007, plaintiff was advised of the requirements for filing an opposition to the motion and that failure to oppose such a motion may be deemed a waiver of opposition to the motion.

Local Rule 11-110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." In the order filed October 24, 2007, plaintiff was advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed.

Good cause appearing, IT IS HEREBY ORDERED that:

1. Within five days from the date of this order defendants shall re-serve a copy of their April 14, 2009 motion to dismiss on plaintiff; and

2. Within thirty days of the date of this order, plaintiff shall file an opposition, if any he has, to the motion to dismiss or a statement of non-opposition. Failure to comply with this order will result in a recommendation that this action be dismissed pursuant Federal Rule of Civil Procedure 41(b).


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