Morgan v. Tilton et al

Filing 86

ORDER responding to 85 Objections; requiring Plaintiff to comply with 84 Order and setting 30-day deadline to file opposition or statement of non-opposition to Defendant, Hernanez's Motion to Dismiss signed by Magistrate Judge Gary S. Austin on 12/31/2013. (Filing Deadline: 2/3/2014).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLY MORGAN,

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1:08-cv-00233-LJO-GSA-PC

Plaintiff,

ORDER RESPONDING TO
PLAINTIFF’S OBJECTIONS
(Doc. 85.)

vs.

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JAMES TILTON, et al.,

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Defendants.

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ORDER REQUIRING PLAINTIFF TO
COMPLY WITH COURT’S ORDER
ISSUED ON DECEMBER 6, 2013
(Doc. 84.)
THIRTY DAY DEADLINE TO FILE
OPPOSITION OR STATEMENT OF
NON-OPPOSITION TO DEFENDANT
HERNANDEZ’ MOTION TO DISMISS

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Kelly Morgan (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983.

Plaintiff filed the Complaint commencing this action on

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February 15, 2008.

This case now proceeds on Plaintiff=s Third Amended

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Complaint, filed on July 28, 2011, against defendant Correctional Officer M. Hernandez

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(ADefendant@) for retaliation and obstruction of mail, in violation of the First Amendment.1

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(Doc. 45.)

(Doc. 1.)

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All remaining claims and defendants were dismissed from this action by the Court on October 17, 2011,
based on Plaintiff=s failure to state a claim. (Doc. 52.)
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On December 6, 2013, the court issued an order requiring Plaintiff to file an opposition,

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or notice of non-opposition, to Defendant’s motion to dismiss this case, within thirty days.

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(Doc. 84.) On December 19, 2013, Plaintiff filed Objections to the court’s order. (Doc. 85.)

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Plaintiff asserts that he received the court’s order of December 6, 2013, but he cannot

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litigate this action because he is presently housed in a psychiatric unit at the prison. Plaintiff

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requests the court to resolve this case in his favor.

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Plaintiff’s Objections do not comply with the court’s order of December 6, 2013.

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Plaintiff was ordered to file either an “opposition” or “notice of non-opposition” to Defendant’s

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motion to dismiss. Plaintiff shall be granted thirty days in which to comply with the court’s

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order. Should Plaintiff require an extension of time, he should file a motion for extension of

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time before the thirty day deadline expires. As Plaintiff was forewarned in the court’s order,

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the court will deem any failure to oppose Defendant’s= motion to dismiss as a waiver, and

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recommend that the motion be granted on that basis. See Ghazali v. Moran, 46 F.3d 52 (9th

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Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he

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did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.

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P. 5(b), and time to file opposition).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within thirty days of the date of service of this order, Plaintiff shall comply with

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the court’s order of December 6, 2013, by filing either an “opposition” or “statement of non-

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opposition” to the motion to dismiss filed by Defendant on October 30, 2013; and

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2.

If Plaintiff fails to comply with this order, the court will deem the failure to

respond as a waiver, and recommend that the motion be granted on that basis.

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IT IS SO ORDERED.
Dated:

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December 31, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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