(PC)Trehearne v. Amador County, No. 2:2022cv00254 - Document 18 (E.D. Cal. 2023)

Court Description: ORDER signed by Magistrate Judge Deborah Barnes on 07/26/2023 VACATING the 16 Findings and Recommendations and DENYING the 15 Motion to Dismiss without prejudice. Plaintiff's Opposition or Statement of Non-Opposition to the 11 Motion to Dismiss due within 30 days. (Spichka, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS TREHEARNE, 12 No. 2:22-cv-00254 DB P Plaintiff, 13 v. 14 ORDER AMADOR COUNTY, 15 Defendants. 16 Plaintiff, Thomas Trehearne1, is a former county inmate proceeding pro se with a civil 17 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint and motion to proceed in 19 forma pauperis on February 7, 2022. (ECF Nos. 1-2.) Plaintiff claims that defendants deprived 20 him of outdoor exercise in violation of his Fourteenth Amendment rights. On December 12, 2022, defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss 21 22 plaintiff’s complaint for failure to state a claim upon which relief can be granted. (ECF No. 11.) 23 Plaintiff failed to file an opposition or statement of non-opposition within the time provided by 24 the Local Rules. See E.D. Cal. Local Rule 230(l). By order dated April 4, 2023, plaintiff was 25 ordered to file an opposition, if any, within thirty days. (ECF No. 14.) On May 23, 2023, 26 //// 27 28 Plaintiff’s name was previously spelled incorrectly. The case caption and docket now reflect the spelling provided on the plaintiff’s latest court filing. (ECF No. 17.) 1 1 1 defendants filed a Fed. R. Civ. P. 41(b) motion to dismiss for failure to prosecute and failure to 2 comply with a court order. (ECF No. 15.) 3 Plaintiff failed to respond, and the court recommended that this action be dismissed for 4 failure to prosecute and failure to comply with court orders. (ECF No. 16.) Thereafter, on July 5, 5 2023, plaintiff filed objections to the findings and recommendations. (ECF No. 17.) Therein, 6 plaintiff states that in early February 2023 plaintiff was taken to a program with none of his 7 paperwork, where he did not have access to his phone or to an online law library. (Id. at 1.) 8 Plaintiff was then taken back into custody for a ten-day incarceration period. (Id.) During the 9 incarceration period plaintiff was able to access the online law library, and then learned of the 10 defendant’s motions and the findings and recommendations. (Id.) Plaintiff has stated that he 11 wishes to proceed and has provided an updated address. (Id.) 12 In light of plaintiff’s statements, the undersigned will vacate the findings and 13 recommendations and grant plaintiff the opportunity to respond to defendant’s December 12, 14 2022, Motion to Dismiss. (ECF No. 11.) Plaintiff is advised that failure to abide by the court’s 15 order and file an opposition or statement of non-opposition will result in a recommendation that 16 this action be dismissed. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The court’s June 14, 2023, Findings and Recommendations (ECF No. 16) are vacated. 19 2. Defendant’s May 23, 2023, Motion to Dismiss (ECF No. 15.) is denied without 20 prejudice. 21 3. Plaintiff shall have thirty days from the date of service of this order to file an 22 opposition or statement of non-opposition to defendant’s December 12, 2022, Motion 23 to Dismiss for failure to state a claim upon which relief can be granted (ECF No. 11.) 24 The opposition or statement of non-opposition must comply with the requirements of 25 the Federal Rules of Civil Procedure, and the Local Rules of Practice; the response 26 must bear the docket number assigned to this case. Plaintiff is advised that failure to 27 //// 28 //// 2 1 comply with this order will result in a recommendation that this action be dismissed 2 for failure to comply with court orders and failure to prosecute. 3 Dated: July 26, 2023 4 5 6 7 8 9 DB:Extern DB/DB Prisoner Inbox/Civil Rights/R/treh0254_vac 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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