Hughes v. California Department of Corrections and Rehabilitation et al

Filing 54

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/27/14 RECOMMENDING that 43 MOTION to DISMISS be granted; and this action be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD C. HUGHES,

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No. 2:11-cv-00530 GEB DAD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA DEP'T OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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On September 17, 2013, defendants Awatani, Fong and Street filed a motion to dismiss

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pursuant to Federal Rules of Civil Procedure 12(b) for failure to exhaust administrative remedies,

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12(b)(6) for failure to state a claim for relief, and 18(a) for including claims and events which

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were unrelated to the original complaint. On November 26, 2013, defendant Malet filed a notice

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joining in defendants' September 17, 2013 motion to dismiss. Plaintiff has not opposed the

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motion despite the court’s order filed on October 31, 2013, providing plaintiff with additional

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time to file his opposition to the motion to dismiss. (ECF No. 47.)

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” On July 11, 2013, plaintiff was advised of the requirements for

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filing an opposition to a motion to dismiss and that failure to oppose such a motion may be
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de
eemed a waiv of oppos
ver
sition to the motion. (EC No. 36 at 3-4.) Plain was prov
m
CF
t
ntiff
vided this

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sa advice again in the court’s Octob 31, 2013 order.
ame
a
c
ber
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Local Rule 110 pro
R
ovides that failure to com
f
mply with th Local Rul “may be grounds for
he
les

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im
mposition of any and all sanctions au
s
uthorized by statute or Ru or within the inheren power of
ule
n
nt

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the Court.” In the orders filed July 11, 2013 and O
e
n
f
October 31, 2013, plaint was advised that
tiff

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fai
ilure to comply with the Local Rules may result in a recomm
s
t
mendation th the action be
hat
n

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dismissed.

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Accord
dingly, IT IS HEREBY RECOMME
S
R
ENDED that
t:

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1. Def
fendants Aw
watani, Fong, Street and M
,
Malet's Sept
tember 17, 2
2013 motion to dismiss

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(E No. 43) be granted; and
ECF
2. Thi action be dismissed pu
is
d
ursuant to Ru 41(b) of the Federal Rules of Civ
ule
vil
Pr
rocedure.

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These findings and recommend
d
dations are s
submitted to the United States Distri Judge
o
ict

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assigned to the case, pursu to the pr
e
uant
rovisions of 28 U.S.C. § 636(b)(l). Within fourt
f
teen days

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aft being ser
fter
rved with the findings and recomm
ese
mendations, p
plaintiff may file written objections
y
n

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wi the court and serve a copy on all parties. Suc a documen should be captioned
ith
ch
nt
e

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“O
Objections to Magistrate Judge’s Fin
o
ndings and R
Recommenda
ations.” Plain is advis that
ntiff
sed

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fai
ilure to file objections within the spe
o
w
ecified time may waive t right to a
the
appeal the D
District

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Co
ourt’s order. Martinez v. Ylst, 951 F.2d 1153 (9t Cir. 1991)
.
th
).

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Da
ated: Januar 27, 2014
ry

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DA
AD:4
hu
ugh530.46

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