Koch v. Godwin, et al

Filing 28

ORDER signed by Magistrate Judge Deborah Barnes on 12/7/2016 ORDERING, within 21 days, plaintiff shall comply with the court's previous order entered on 9/28/2016 or show good cause why he cannot comply; and within 21 days, plaintiff shall file an opposition, if any, to the 15 , 17 motion to dismiss. Alternatively, if plaintiff no longer wishes to pursue this action he may file a request to voluntarily dismiss this case. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK FRANCIS KOCH,

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Plaintiff,

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v.

No. 2:15-cv-2645 GEB DB P

ORDER

R. GODWIN, et al.,
Defendants.

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Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983.
On May 9, 2016, the court ordered the United States Marshal to serve the complaint on

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defendants. Process directed to defendant A. Avanti was returned unserved because those at the

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address provided “cannot accept service on behalf of defendant.” The court then ordered plaintiff

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to provide additional information to serve this defendant. (ECF No. 27.) Specifically, the court

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directed plaintiff to promptly seek such information through discovery, the California Public

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Records Act, Calif. Gov’t. Code § 6250, et seq., or other means available to plaintiff. If access to

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the required information was denied or unreasonably delayed, plaintiff was allowed to pursue

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judicial intervention.

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The Clerk of the Court sent to plaintiff one USM-285 forms, along with an instruction
sheet and a copy of the complaint filed December 22, 2015. Within sixty days of the September
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28, 2016 order, plaintiff was required to complete and submit the attached Notice of Submission

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of Documents to the court, with the following documents:

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a. One completed USM-285 form for each defendant A. Avanti;

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b. Two copies of the endorsed complaint filed December 22, 2015; and

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c. One completed summons form (if not previously provided) or show good cause

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why he cannot provide such information.

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The deadline for plaintiff to submit the appropriate documentation or to show good cause

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why he cannot provide such information is now passed and plaintiff has not complied with the

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court’s order. IT IS HEREBY ORDERED that, within twenty-one (21) days of the date of this

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order, plaintiff shall comply with the court’s previous order entered on September 28, 2016 or

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show good cause why he cannot comply. If plaintiff still does not comply, then the court may

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recommend that this matter be dismissed for failure to prosecute.

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In addition to not complying with the court’s September 28, 2016 order, plaintiff also has

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yet to file a response to defendant Duffy’s motion to dismiss (ECF No. 15) that was filed on July

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29, 2016. On August 19, 2016, defendants Mora, Castro, Gallegos, Miller and Godwin joined the

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motion to dismiss. (ECF No. 17.) Local Rule 230(l) provides in part: “Failure of the responding

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

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any opposition to the granting of the motion[.]” On May 9, 2016, plaintiff was advised of the

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requirements for filing an opposition to the motion and that failure to oppose such a motion may

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be deemed a waiver of opposition to the motion. (ECF No. 11.)

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Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for

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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” In the order filed May 9, 2016, plaintiff was advised that failure to comply with the

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Local Rules may result in a recommendation that the action be dismissed. (ECF No. 11.)

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Good cause appearing, IT IS HEREBY ORDERED that:

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(1)

Within twenty-one (21) days of the date of this order, plaintiff shall comply with

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the court’s previous order entered on September 28, 2016 or show good cause why he cannot

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comply (if plaintiff still does not comply, then the court will recommend that this matter be

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dismissed for failure to prosecute); and

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(2)

Within twenty-one (21) days of the date of this order, plaintiff shall file an

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opposition, if any, to the motion to dismiss filed on behalf of the defendant Duffy and joined by

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defendants Mora, Castro, Gallegos, Miller and Godwin. Failure to file an opposition will be

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deemed as a statement of non-opposition and shall result in a recommendation that this action be

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dismissed pursuant Federal Rule of Civil Procedure 41(b). Alternatively, if plaintiff no longer

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wishes to pursue this action he may file a request to voluntarily dismiss this case.

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Dated: December 7, 2016

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TIM-DLB10
ORDERS/ ORDERS.PRISONER.CIVIL RIGHTS /koch2645.osc

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