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Larry Dean Clay v. John N. Dianna

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


March 8, 2013

LARRY DEAN CLAY, PLAINTIFF,
v.
JOHN N. DIANNA, ET AL., DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner, proceeding without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. On November 2, 2012, sole defendant Diana filed a motion to dismiss. Plaintiff failed to file an opposition, which was due within 21 days. On February 5, 2012, this court informed plaintiff of his omission, and directed that plaintiff either file an opposition, or statement of non-opposition, within 21 days. Plaintiff was informed that "[f]ailure . . . to file an opposition within this deadline shall be deemed as plaintiff's consent to have this action dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b)." (Dkt. No. 21 at 2.)

The time for responding to the court's order expired on February 26, 2013. Even if additional time is authorized for service by mail (three days, pursuant to Fed. R. Civ. P. 6(d)), it is clear that plaintiff has failed to respond to the court's order. The court construes plaintiff's inaction as his consent to have this action dismissed without prejudice.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. Fed. R. Civ. P. 41(b).

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 14 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 14 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).

20130308

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