-KJN (TEMP)(PC) Aidnik v. O'Conner et al, No. 2:2009cv02271 - Document 35 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 06/27/11 vacating 32 FINDINGS AND RECOMMENDATIONS. Plaintiff has 30 days from the entry of this order in which to file an opposition to the motion to dismiss of 02/16/11, or a statement of non-opposition. (Plummer, M)

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-KJN (TEMP)(PC) Aidnik v. O'Conner et al Doc. 35 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JEFF AIDNIK 11 12 13 14 Plaintiff, No. 2:09-cv-2271 WBS KJN (TEMP) P vs. SHAWN O’CONNER, et al. Defendants. ORDER / 15 16 Plaintiff is a state prisoner proceeding without counsel in an action under 42 17 U.S.C. § 1983. On April 1, 2011, the court ordered plaintiff to file an opposition or statement of 18 non-opposition in response to defendant Russell’s motion to dismiss, filed February 16, 2011. 19 Plaintiff failed to comply with the order or otherwise communicate with the court, so the court 20 recommended dismissal pursuant to Fed.R.Civ.P. 41 (b). 21 Plaintiff has timely filed an objection to the recommendation of dismissal. While 22 plaintiff offers no plausible explanation for his failure to respond to the motion to dismiss, he 23 does state that he wants to proceed with his case. In keeping with the lenient allowances the 24 court usually extends incarcerated plaintiffs who proceed without counsel, the court will vacate 25 the recommendation of dismissal and provide plaintiff with a final opportunity to oppose the 26 motion to dismiss. Plaintiff is again admonished that his failure to comply with this order will 1 Dockets.Justia.com 1 result in a second recommendation of dismissal under Fed.R.Civ.P. 41(b).1 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations entered June 8, 2011, are vacated. 4 2. Plaintiff has thirty days from the entry of this order in which to file an 5 opposition to the motion to dismiss of February 16, 2011, or a statement of non-opposition. 6 Failure to comply with this order will result in a second recommendation of dismissal under 7 Fed.R.Civ.P. 41(b). 8 DATED: June 27, 2011 9 10 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 11 12 aidn2271.ord 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff is further admonished that neither his status with the California Department of Corrections and Rehabilitation nor his inability to contact defense counsel have any bearing on his obligation to prosecute his case in a timely manner. Therefore the court will not again extend the leniency embodied in the vacating of the existing recommendation of dismissal unless plaintiff can excuse another failure to prosecute with a showing of good cause. If plaintiff experiences a significant impediment to his access to this court, it is his responsibility to contact the court to explain the delay and request an extension of time in which to oppose the motion to dismiss, or, in severe circumstances of unreasonable conduct by prison officials, to request assistance in removing that impediment. The mere fact of incarceration is not a significant or unreasonable hindrance to plaintiff’s ability to litigate his case and will not be accepted as an excuse for failure to comply with the court’s orders. 2

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