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Avery v. Pool

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


September 17, 2010

KYLE AVERY, PLAINTIFF,
v.
K. POOL, ET AL., DEFENDANTS.

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

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.

On June 9, 2010, defendant filed a motion for summary judgment. Plaintiff never filed an opposition or otherwise communicated with the court, thus on August 13, 2010, the undersigned recommended that defendant's motion for summary judgment be granted and this case closed. On August 30, 2010, plaintiff filed a motion to dismiss without prejudice, instead of formal objections or an opposition. Plaintiff did not indicate if he intends to file an opposition to the summary judgment motion.

The undersigned ordered defendant to file an opposition to plaintiff's motion to dismiss without prejudice. Defendant opposes the motion and persuasively argues that granting plaintiff's motion would be prejudicial for defendant who has spent much time and effort litigating this case and filed an extensive motion for summary judgment.

Therefore, plaintiff's motion will be vacated and plaintiff will be granted one final opportunity to file an opposition to the motion for summary judgment within fourteen days from service of this order. No extensions will be granted. Failure to file an extension will result in the renewed recommendation that this case be closed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to dismiss, Doc. 32, is vacated.

2. Plaintiff is granted fourteen days from service of this order to file an opposition to the motion for summary judgment. No extensions will be granted. Failure to file an extension will result in the renewed recommendation that this case be closed.

20100917

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