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Andre Rider v. J. Walker

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


July 13, 2011

ANDRE RIDER, PLAINTIFF,
v.
J. WALKER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On April 27, 2011, defendants Gyaami and Paulsen filed a motion to dismiss for failure to exhaust administrative remedies and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b) and 12(b)(6).

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 December 6, 2010, plaintiff was advised of the requirement 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 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute of Rule or within the inherent power of the Court." In the order filed December 6, 2010, plaintiff was advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed.

On June 2, 2011, plaintiff was granted thirty days to file an opposition to defendants' motion to dismiss. The June 2, 2011 order warned plaintiff that his failure to file an opposition would be deemed a statement of non-opposition and would result in a recommendation that defendants' motion be granted. Thirty days passed and plaintiff did not file an opposition or otherwise respond to the June 2, 2011 order.

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.

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall assign a district judge to this action; and

IT IS HEREBY RECOMMENDED that the motion to dismiss filed April 27, 2011 by defendants Gyaami and Paulsen (Dkt. No. 25) be granted.

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-one 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 response to the objections shall be filed and served 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).

20110713

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