Cornish v. MacDonald

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 11/5/12 ORDERING that within 14 days after service of this order, petitioner plaintiff shall file an opposition, if any, to respondents motion to dismiss; alternatively, petitioner may file a statement of non-opposition, or a request that this action be dismissed without prejudice.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMMIEL CORNISH,
Petitioner,

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vs.

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No. 2:12-cv-1296 KJN P

JIM MACDONALD,
Respondent.

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ORDER
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Petitioner is a state prisoner, who proceeds without counsel, in this habeas corpus

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action filed pursuant to 28 U.S.C. § 2254. Both petitioner and respondent have consented to the

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jurisdiction of the magistrate judge for all purposes. (Dkt. Nos. 6, 12.) See 28 U.S.C. § 636(c);

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Local Rule 305(a).
On September 25, 2012, respondent filed a motion to dismiss the petition on

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statute of limitations grounds, as well as the alleged failure of petitioner to exhaust his state court

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remedies. Pursuant to this court’s order filed July 27, 2012 (Dkt. No. 7), petitioner’s opposition

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or statement of non-opposition to the motion was due within thirty days after service of the

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motion.
Petitioner has not responded to the motion.

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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 . . . .” Local Rule 110 provides that failure to comply with the Local

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Rules “may be grounds for imposition of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” Finally, Rule 41(b), Federal Rules of Civil Procedure,

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provides that an action may be dismissed for failure to prosecute or to comply with court rules or

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a court order. Fed. R. Civ. P. 41(b).
Good cause appearing, IT IS HEREBY ORDERED that, within fourteen days

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after service of this order, petitioner plaintiff shall file an opposition, if any, to respondent’s

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motion to dismiss; alternatively, petitioner may file a statement of non-opposition, or a request

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that this action be dismissed without prejudice. Failure of petitioner to timely respond to this

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order will be construed as a request for voluntary dismissal of this action without prejudice. Fed.

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R. Civ. P. 41(b)(2).
SO ORDERED.

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DATED: November 5, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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corn1296.nooppo.

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