(PC) Hernandez v. Allen ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY C. HERNANDEZ, No. 2:20-cv-1661 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ALLEN, et al., 15 Defendants. 16 17 Plaintiff is a former1 state inmate proceeding pro se with a civil rights action pursuant to 18 42 U.S.C. § 1983. Plaintiff claims jail officials violated his rights while he was confined in the 19 Amador County Jail. 20 On October 19, 2021, defendants Benov and Stone2 filed a motion to dismiss pursuant to 21 Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 24, 25.) Plaintiff has not filed an 22 opposition or statement of non-opposition. 23 //// 24 25 1 The California Department of Corrections and Rehabilitation’s Inmate Locator website, 26 http://www.inmatelocator.cdcr.ca.gov, indicates that plaintiff is not in custody. Plaintiff has not updated his address with the court as required by Eastern District of California Local Rule 182(f). 27 2 This action is proceeding solely on plaintiff’s excessive force claims against defendants Benov 28 and Stone. Plaintiff voluntarily dismissed all other claims and defendants. (ECF No. 18.) 1 Local Rule 230(l) provides in part: “Failure of the responding party to file written 2 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 3 the granting of the motion . . . .” On July 7, 2021 plaintiff was advised of the requirements for 4 filing an opposition to a motion to dismiss and that failure to oppose such a motion may be 5 deemed a waiver of opposition to the motion. (ECF No. 21 at 3.) Additionally, on December 9, 6 2021 the undersigned directed plaintiff to file an opposition or statement of non-opposition within 7 thirty days. (ECF No. 26.) Plaintiff was warned that failure to oppose the motion to dismiss may 8 be deemed a waiver of opposition to the motion. (Id.) Those thirty days have passed, and 9 plaintiff has not filed an opposition or statement of non-opposition to the motion to dismiss, 10 sought additional time to file an opposition or statement of non-opposition, or otherwise 11 responded to the court’s order. 12 Accordingly, plaintiff’s failure to oppose should be deemed a waiver of opposition to the 13 granting of defendants’ motion and the undersigned will recommend that the motion be granted. 14 For the reasons set forth above, the Clerk of the Court is ORDERED to randomly assign a 15 District Judge to this action. 16 IT IS HEREBY RECOMMENDED that: 17 1. Defendants’ motion to dismiss (ECF No. 25) be granted; and 18 2. This action be dismissed. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be filed and served within fourteen days after service of the objections. The 25 //// 26 //// 27 //// 28 //// 1 || parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: January 20, 2022 4 5 6 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 DB:12 13. || DB/DB Prisoner Inbox/Civil Rights/R/hern1661 fr 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28