Avila v. Borders

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 6/21/2017 DENYING petitioner's 19 motion for permission; and petitioner shall file an opposition to the motion to dismiss on or before 7/7/2017. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEXANDER AVILA,

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Petitioner,

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No. 2:16-cv-2903 KJN P

v.

ORDER

D. BORDERS,

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Respondent.

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Petitioner is a former state prisoner, proceeding without counsel. Both parties consented

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to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On June 5, 2017,

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petitioner, filed a motion for permission to use the court’s electronic filing system. (ECF No. 19.)

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Local Rule 133 provides that

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[a]ny person appearing pro se may not utilize electronic filing
except with the permission of the assigned Judge or Magistrate
Judge . . . All pro se parties shall file and serve paper documents as
required by applicable Federal Rules of Civil or Criminal Procedure
or by these Rules.

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E.D. Cal. L.R. 133(b)(2). Here, petitioner’s stipulated request does not set forth a compelling

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reason why the court should deviate from the Local Rules and its standard practice of disallowing

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the use of electronic filing by pro se litigants. Thus, the motion is denied without prejudice.

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By order filed May 3, 2017, petitioner was granted one final extension of time, to June 12,

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2017, in which to file his opposition to defendants’ motion to dismiss. During the pendency of

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his motion for permission, the deadline to file an opposition expired. In an abundance of caution,

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petitioner is granted until July 7, 2017, in which to file his opposition. Petitioner is cautioned that

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failure to file an opposition on or before July 7, 2017, will result in the court finding that such

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failure is deemed a waiver of his opposition to the motion, and the court will grant the motion,

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dismissing the unexhausted claims, and requiring petitioner to file an amended petition raising

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only the one subclaim that is exhausted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for permission (ECF No. 19) is denied; and

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2. Petitioner shall file an opposition to the motion to dismiss on or before July 7, 2017.

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Dated: June 21, 2017

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/cw/avil2903.ecf

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