Armstead v. Virga et al

Filing 39

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES ARMSTEAD,

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Plaintiff,

No. 2: 11-cv-1054 JAM KJN P

vs.
TIM V. VIRGA, et al.,
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. For the following reasons, plaintiff is granted twenty-one days to

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file an opposition to defendants’ motion to dismiss.

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On November 3, 2011, defendants filed a motion to dismiss pursuant to Federal

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Rule of Civil Procedure 12(b)(6). Plaintiff did not oppose the motion to dismiss. On January 20,

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2012, the undersigned recommended that this action be dismissed pursuant to Federal Rule of

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Civil Procedure 41(b). On February 23, 2012, the Honorable John A. Mendez adopted the

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January 20, 2012 findings and recommendations.

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On February 13, 2012, plaintiff filed a motion for an extension of time to file

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objections to the findings and recommendations. Plaintiff’s motion for extension of time was not

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in the court file when Judge Mendez reviewed the findings and recommendations. Accordingly,
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on March 21, 2012, Judge Mendez vacated the February 23, 2012 order and judgment, and

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granted plaintiff thirty days to file objections to the findings and recommendations.

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On April 5, 2012, plaintiff filed objections. In the objections, plaintiff alleges that

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defendants violated his rights. Attached as exhibits to the objections are a copy of the June 28,

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2011 amended complaint and a “memorandum of points and authorities.” It is not clear if

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plaintiff intends the points and authorities attached to his objections to be his opposition to

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defendants’ motion to dismiss.

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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

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dismiss. Failure to file an opposition will be deemed a waiver of opposition. If plaintiff intends

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the points and authorities attached to his objections to be his opposition, he shall file a short

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statement to that effect.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The January 20, 2012 findings and recommendations are dismissed;

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2. Plaintiff is granted twenty-one days to file an opposition to defendants’ motion

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to dismiss.

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DATED: April 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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arm1054.opp

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