Armstead v. Virga et al
ORDER signed by Magistrate Judge Kendall J. Newman on 4/10/2012 ORDERING that the 32 findings and recommendations are DISMISSED; plaintiff has 21 days to file an opposition to defendants' motion to dismiss. (Yin, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2: 11-cv-1054 JAM KJN P
TIM V. VIRGA, et al.,
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action
pursuant to 42 U.S.C. § 1983. For the following reasons, plaintiff is granted twenty-one days to
file an opposition to defendants’ motion to dismiss.
On November 3, 2011, defendants filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiff did not oppose the motion to dismiss. On January 20,
2012, the undersigned recommended that this action be dismissed pursuant to Federal Rule of
Civil Procedure 41(b). On February 23, 2012, the Honorable John A. Mendez adopted the
January 20, 2012 findings and recommendations.
On February 13, 2012, plaintiff filed a motion for an extension of time to file
objections to the findings and recommendations. Plaintiff’s motion for extension of time was not
in the court file when Judge Mendez reviewed the findings and recommendations. Accordingly,
on March 21, 2012, Judge Mendez vacated the February 23, 2012 order and judgment, and
granted plaintiff thirty days to file objections to the findings and recommendations.
On April 5, 2012, plaintiff filed objections. In the objections, plaintiff alleges that
defendants violated his rights. Attached as exhibits to the objections are a copy of the June 28,
2011 amended complaint and a “memorandum of points and authorities.” It is not clear if
plaintiff intends the points and authorities attached to his objections to be his opposition to
defendants’ motion to dismiss.
Good cause appearing, the January 20, 2012 findings and recommendations are
vacated. Plaintiff is granted twenty-one days to file an opposition to defendants’ motion to
dismiss. Failure to file an opposition will be deemed a waiver of opposition. If plaintiff intends
the points and authorities attached to his objections to be his opposition, he shall file a short
statement to that effect.
Accordingly, IT IS HEREBY ORDERED that:
1. The January 20, 2012 findings and recommendations are dismissed;
2. Plaintiff is granted twenty-one days to file an opposition to defendants’ motion
DATED: April 10, 2012
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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