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Koch v. Godwin, 2:15-cv-2645 GEB DB P. (2016)

Court: District Court, E.D. California Number: infdco20161208932 Visitors: 15
Filed: Dec. 07, 2016
Latest Update: Dec. 07, 2016
Summary: ORDER DEBORAH BARNES , Magistrate Judge . Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. 1983. On May 9, 2016, the court ordered the United States Marshal to serve the complaint on defendants. Process directed to defendant A. Avanti was returned unserved because those at the address provided "cannot accept service on behalf of defendant." The court then ordered plaintiff to provide additional information to serve this
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ORDER

Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.

On May 9, 2016, the court ordered the United States Marshal to serve the complaint on defendants. Process directed to defendant A. Avanti was returned unserved because those at the address provided "cannot accept service on behalf of defendant." The court then ordered plaintiff to provide additional information to serve this defendant. (ECF No. 27.) Specifically, the court directed plaintiff to promptly seek such information through discovery, the California Public Records Act, Calif. Gov't. Code § 6250, et seq., or other means available to plaintiff. If access to the required information was denied or unreasonably delayed, plaintiff was allowed to pursue judicial intervention.

The Clerk of the Court sent to plaintiff one USM-285 forms, along with an instruction sheet and a copy of the complaint filed December 22, 2015. Within sixty days of the September 28, 2016 order, plaintiff was required to complete and submit the attached Notice of Submission of Documents to the court, with the following documents:

a. One completed USM-285 form for each defendant A. Avanti;

b. Two copies of the endorsed complaint filed December 22, 2015; and

c. One completed summons form (if not previously provided) or show good cause why he cannot provide such information.

The deadline for plaintiff to submit the appropriate documentation or to show good cause why he cannot provide such information is now passed and plaintiff has not complied with the court's order. IT IS HEREBY ORDERED that, within twenty-one (21) days of the date of this order, plaintiff shall comply with the court's previous order entered on September 28, 2016 or show good cause why he cannot comply. If plaintiff still does not comply, then the court may recommend that this matter be dismissed for failure to prosecute.

In addition to not complying with the court's September 28, 2016 order, plaintiff also has yet to file a response to defendant Duffy's motion to dismiss (ECF No. 15) that was filed on July 29, 2016. On August 19, 2016, defendants Mora, Castro, Gallegos, Miller and Godwin joined the motion to dismiss. (ECF No. 17.) 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 May 9, 2016, plaintiff was advised of the requirements 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. (ECF No. 11.)

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 or Rule or within the inherent power of the Court." In the order filed May 9, 2016, plaintiff was advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed. (ECF No. 11.)

Good cause appearing, IT IS HEREBY ORDERED that:

(1) Within twenty-one (21) days of the date of this order, plaintiff shall comply with the court's previous order entered on September 28, 2016 or show good cause why he cannot comply (if plaintiff still does not comply, then the court will recommend that this matter be dismissed for failure to prosecute); and

(2) Within twenty-one (21) days of the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss filed on behalf of the defendant Duffy and joined by defendants Mora, Castro, Gallegos, Miller and Godwin. Failure to file an opposition will be deemed as a statement of non-opposition and shall result in a recommendation that this action be dismissed pursuant Federal Rule of Civil Procedure 41(b). Alternatively, if plaintiff no longer wishes to pursue this action he may file a request to voluntarily dismiss this case.

Source:  Leagle

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