Banks v. Moule et al

Filing 20

ORDER signed by Magistrate Judge Deborah Barnes on 1/5/2018 ORDERING Plaintiff to file, within 30 days of the date of this order, an opposition to 14 Motion to Dismiss. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMION M. BANKS, 12 13 14 15 No. 2:17-cv-0381 DB P Plaintiff, v. ORDER KIMBERLY MOULE, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983. Plaintiff, who is confined to a wheelchair, contends that while he 19 was incarcerated at the San Joaquin County Jail, defendants discriminated against him based on 20 his disability in violation of the Americans with Disabilities Act. On October 18, 2017, 21 defendants filed a motion to dismiss this case based on plaintiff’s failure to exhaust his 22 administrative remedies. (ECF No. 14.) 23 When plaintiff did not file a timely opposition to the motion, the court issued an order 24 giving plaintiff an additional thirty days to do so. (ECF No. 18.) Plaintiff was warned that if he 25 failed to file a timely opposition, this court might recommend dismissal of this action. 26 In a document filed December 20, 2017, plaintiff informed the court that he has been 27 released and that he was “sending a[n] opposition to the motion to dismiss.” (ECF No. 19.) To 28 date, however, the court has not received an opposition from plaintiff. 1 1 Plaintiff will be given one final opportunity to file an opposition to the motion to dismiss. 2 If he fails to do so, this court will recommend dismissal of this case without prejudice. See Fed. 3 R. Civ. P. 41; E.D. Cal. R. 110. 4 Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order, 5 plaintiff shall file his opposition to the motion to dismiss. If plaintiff fails to comply with this 6 order, this court will recommend this case be dismissed without prejudice. 7 Dated: January 5, 2018 8 9 10 11 12 13 14 DLB:9 DLB1/prisoner-civil rights/bank0381.fta 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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