Duff v. Solano County Sheriff's Department

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/19/2010 RECOMMENDING that dft Villasenor's 21 motion to dismiss for failure to exhaust administrative remedies as to pltf's allegations against this dft be granted and dft Villasenor be dismissed from this action. Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 14 days. (Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. / On January 26, 2010, defendant Villasenor filed a motion to dismiss for plaintiff's alleged failure to exhaust administrative remedies as to plaintiff's allegations against this defendant. By Order filed on November 16, 2009, pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), plaintiff was advised of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies made by a defendant pursuant to nonenumerated Rule 12(b) of the Federal Rules of Civil Procedure. By Order filed on March 17, 2010, plaintiff was granted a generous extension of time until April 12, 2010, to file a response to defendant Villasenor's motion to dismiss. Plaintiff was cautioned that failure to oppose the motion would be deemed a waiver of opposition. Plaintiff has filed no opposition, although court records reflect plaintiff was properly served with notice of the motion and the order 1 FINDINGS & RECOMMENDATIONS vs. SOLANO COUNTY SHERIFF'S DEPARTMENT, et al., JAIMEY L. DUFF, Plaintiff, No. CIV S-09-1053 LKK GGH P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

granting an extension of time to file opposition at plaintiff's address of record. In the instant case, plaintiff has been cautioned that his failure to oppose the motion to dismiss would be deemed a waiver of opposition to the motion. Based on plaintiff's failure to file an opposition, the court concludes that plaintiff has consented to defendant Villasenor's motion to dismiss. In the alternative, the court finds that defendant Villasenor's motion has merit. Accordingly, IT IS HEREBY RECOMMENDED that defendant Villasenor's motion to dismiss for failure to exhaust administrative remedies as to plaintiff's allegations against this defendant be granted and defendant Villasenor be dismissed from this action. See Local Rule 110. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: May 19, 2010 /s/ Gregory G. Hollows

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 2
GGH:009 duff1053.fsc