(PC) Sargent v. Statti, No. 2:2009cv01472 - Document 69 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/17/2010 RECOMMENDING that dfts' 65 motion to dismiss be granted; and this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)
Download PDF
(PC) Sargent v. Statti Doc. 69 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLARENCE SARGENT, 11 Plaintiff, 12 vs. 13 No. CIV S-09-1472 MCE GGH P P. STATTI, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 On May 12, 2010, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 17 12(b)(6) and non-enumerated Fed. R. Civ. P. 12(b). Pursuant to the Order, filed on July 9, 2010, 18 defendants, on July 12, 2010, filed an amended proof of service indicating that plaintiff had been 19 re-served with this motion at his most current address. In the July 9, 2010, Order, plaintiff was 20 granted twenty-eight days from the date of re-service of defendants’ motion to file his response. 21 Plaintiff has failed to respond to the court’s order and has neither opposed the motion or 22 otherwise responded to it. 23 Local Rule 230(l) provides in part: “Failure of the responding party to file written 24 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 25 the granting of the motion . . . .” On October 30, 2009, plaintiff was advised of the requirements 26 for filing an opposition to a motion to dismiss and that failure to oppose such a motion may be 1 Dockets.Justia.com 1 deemed a waiver of opposition to the motion. In addition, Local Rule 110 states that “[f]ailure of 2 ...a party to comply with these Rules or with any order of the Court may be grounds for 3 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 4 inherent power of the Court.” See Fed. R. Civ. P. 41(b). 5 Accordingly, plaintiff’s failure to oppose should be deemed a waiver of 6 opposition to the granting of the motion. Alternatively, the court has reviewed the motion and 7 finds that it has merit. Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Defendants’ May 12, 2010, motion to dismiss be granted; and 9 2. This action be dismissed. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: September 17, 2010 /s/ Gregory G. Hollows 19 UNITED STATES MAGISTRATE JUDGE 20 GGH:035 sarg1472.46 21 22 23 24 25 26 2