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Tamel Johnson v. Rallos

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


August 10, 2012

TAMEL JOHNSON, PLAINTIFF,
v.
RALLOS, ET. AL.,
DEFENDANTS.

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

ORDER & FINDINGS AND RECOMMENDATIONS

Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. Currently pending are motions to dismiss for failure to exhaust administrative remedies pursuant to Fed. R . Civ. P. 12(b) and for failure to state a claim under Fed. R . Civ. P. 12(b)(6). The motions were filed on May 21, 2012, and June 20, 2012, though plaintiff has yet to file an opposition. On July 12, 2012, plaintiff was provided 21 days to file an opposition and informed of the requirements to oppose a motion to dismiss for failure to exhaust in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012). Plaintiff was informed that this action could be dismissed if he did not file an opposition. The time period has now passed and plaintiff has not filed an opposition or otherwise communicated with the court.

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 March 20, 2012, and July 12, 2012, 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 motions and in the alternative the undersigned finds that the motions have merit.

Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case.

IT IS HEREBY RECOMMENDED that:

1. Defendants' motions to dismiss (Docs. 26, 29) 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 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 "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).

20120810

© 1992-2012 VersusLaw Inc.



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