(PC) Hampton v. Austin ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY G. HAMPTON, JR., No. 2:20-cv-01001-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 LORI W. AUSTIN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern 19 District of California local rules. 20 On August 17, 2022, the Magistrate Judge filed findings and recommendations, which 21 were served on the parties and which contained notice that the parties may file objections within 22 the time specified therein. The Magistrate Judge recommended dismissing plaintiff’s action after 23 the court warned plaintiff “that the failure to oppose the [pending] motion [to dismiss] could be 24 construed as consent to the relief requested.” F&R at 1, ECF No. 32. Plaintiff timely filed 25 objections. See Obj., ECF No. 33. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. Local Rule 230(c) states a “failure to file a 28 timely opposition may be construed by the Court as a non-opposition to a motion” but does not 1 || state a failure to respond may be construed as consent to the relief requested. E.D. Cal. L.R. 2 | 230(c). Courts may either dismiss complaints due to plaintiffs non-opposition or consider the 3 || complaint’s underlying merits regardless of the non-opposition. Compare Ghazali v. Moran, 4 | 46 F.3d 52, 54 (9th Cir. 1995) (dismissing case with prejudice due to plaintiff's non-opposition) 5 || with Elec. Recyclers Int'l, Inc. v. Calbag Metals Co., No. 1:14-CV-01352, 2015 WL 1529490, at 6 || *2 (E.D. Cal. Apr. 2, 2015) (“Although Calbag’s motion now faces no opposition, the court’s 7 || duty remains to consider its underlying merits.”). 8 Here, this court has discretion to dismiss the case on a procedural basis due to □□□□□□□□□□□ 9 || non-opposition. Plaintiff objects to dismissal, claiming for the first time that due to a learning 10 || disability, counsel is needed “to adequately respond to these [sic] request to dismiss my 11 | complaint.” Obj. at 1. In light of plaintiffs objections, which raise new arguments not 12 || previously considered by the magistrate judge, the court declines to adopt the findings and 13 || recommendations. The matter is referred again to the magistrate judge for all further pretrial 14 || proceedings, including consideration of whether petitioner qualifies for appointment of counsel. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The court declines to adopt the magistrate judge’s finding and recommendations; and 17 2. This matter is referred back to the assigned magistrate judge for all further pretrial 18 proceedings, including consideration of whether petition qualified for appointment of 19 counsel. 20 21 || DATED: February 21, 2023. 22 23 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 25 26 27 28