Salado v. Sisto et al

Filing 17

ORDER signed by Magistrate Judge Kendall J. Newman on 9/26/11. The Clerk is directed to Change plaintiff's name from Martin Salado to Martin Salcido in the court's CM/ECF records; and Re-serve a copy of this court's 8/24/11 order on Plaintiff; and Plaintiff is GRANTED 28 days from the date of this order to file an opposition to defendant Rice's MOTION TO DISMISS.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARTIN SALCIDO,

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Plaintiff,

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vs.

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No. 2:11-cv-0611 LKK KJN P

D.K. SISTO, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel with a civil rights action

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pursuant to 42 U.S.C. § 1983. On July 19, 2011, defendant Rice filed a motion to dismiss. On

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May 20, 2011, the court advised plaintiff of the requirements for opposing a motion pursuant to

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Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th

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Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). In that

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same order, plaintiff was advised of the requirements for filing an opposition to the pending

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motion and that failure to oppose such a motion would be deemed as consent to have the: (a)

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pending motion granted; (b) action dismissed for lack of prosecution; and (c) action dismissed

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based on plaintiff’s failure to comply with these rules and a court order.

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On August 24, 2011, plaintiff was ordered to file an opposition or a statement of
non-opposition to the pending motion within thirty days. In the same order, plaintiff was
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informed that failure to file an opposition would result in a recommendation that this action

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be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The thirty day

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period has now expired and plaintiff has not responded to the court’s order.

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However, it appears plaintiff’s name was misspelled when this case was opened.

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Thus, the Clerk of the Court is directed to change the records in CM/ECF from Martin Salado to

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Martin Salcido. Although plaintiff’s name was misspelled, the inmate identification number is

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accurate, and plaintiff timely responded to the court’s April 5, 2011 order. Defendant Rice

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properly spelled plaintiff’s name in the July 19, 2011 motion to dismiss. But in an abundance of

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caution, the Clerk of the Court is directed to re-serve a copy of the court’s August 24, 2011 order

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on plaintiff, and plaintiff will be granted 28 days from the date of this order to file an opposition

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to defendant Rice’s motion to dismiss.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to:

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a. Change plaintiff’s name from Martin Salado to Martin Salcido in the
court’s CM/ECF records; and

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b. Re-serve a copy of this court’s August 24, 2011 order on plaintiff; and

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2. Plaintiff is granted 28 days from the date of this order to file an opposition to

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defendant Rice’s motion to dismiss.

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DATED: September 26, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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salc0611.46x

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