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Javiad Akhtar v. J. Mesa

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


March 8, 2011

JAVIAD AKHTAR, PLAINTIFF,
v.
J. MESA, ET AL.,
DEFENDANTS.

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

ORDER AND FINDINGS & RECOMMENDATIONS

On January 11, 2011, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b). Plaintiff has not opposed the motion.

Local Rule 230(l) 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 November 3, 2010, 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.*fn1

IT IS HEREBY ORDERED that the Clerk shall assign a district judge to this case. IT IS HEREBY RECOMMENDED that defendants'January 11, 2011, motion to dismiss be granted, and 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 fourteen 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 The court rejects such an interpretation of Rhodes for two reasons. First, allowing a prisoner to file unexhausted claims, then exhaust, then file an amended complaint regarding the same, old claims contained in the original complaint would create an end-run around the rule of McKinney and Vaden "that a prisoner must exhaust his administrative remedies for the claims contained within his complaint before the complaint is tendered to the district court." Id. at *5-6. Rhodes itself repeated that rule and did not disapprove of it. Id.

Second, unlike Rhodes, in which the amended complaint was actually a supplemental complaint under Federal Rule of Civil Procedure 15(d), the amended complaint in this case is not a supplemental complaint, because it raises only claims already raised in the initial complaint. Under Rule 15(c)(B), such an amended complaint relates back to date of the original complaint."

"Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen 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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