IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 24, 2009
RONALD E. SCAIFE, PLAINTIFF,
WARDEN MIKE KNOWLES, DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
On May 29, 2009, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On July 28, 2009, the court directed the plaintiff to file an opposition within thirty days and that failure to oppose the motion would result in a recommendation that the action be dismissed. Plaintiff has not opposed the motion.
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 January 22, 2009 plaintiff was advised of the requirements for filing an opposition to a motion to dismiss and that failure to oppose such a motion may be deemed a waiver of opposition to the motion.
Accordingly, plaintiff's failure to oppose should be deemed a waiver of opposition to the granting of the motion. In the alternative, the court has reviewed the motion and finds that it has merit. Plaintiff is seeking only prospective injunctive relief with regard to an allegation of a lack of compliance with the ADA on the CMF exercise yard, a claim which defendant argues should be barred by the Armstrong consent decree. It appears a state prisoner plaintiff may be barred from seeking injunctive relief under the ADA by the Armstrong consent decree. See Crayton v. Terhune, No. 98-4386 2002 WL 31093590, at *4 (N.D.Cal. Sept. 17, 2002) (in turn, citing Armstrong v. Davis, et al., No. CV 94-2307 CW (N.D.Cal.)).
The Clerk is directed to assign a district judge to this case.
IT IS HEREBY RECOMMENDED that:
1. Defendants' May 29, 2009, motion to dismiss be granted; and
2. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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