Avila v. McMahon et al

Filing 27

ORDER signed by Magistrate Judge Allison Claire on 6/6/2018 WITHDRAWING 24 Findings and Recommendations. A hearing on 4 Motion to Dismiss is set for 7/11/2018, at 10:00 AM, in Courtroom 26 (AC), before Magistrate Judge Allison Claire. In accordance with the new hearing date, plaintiff must file his opposition no later than 6/27/2018. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ANTHONY AVILA,

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No. 2:18-cv-00163-JAM-AC (PS)

Plaintiff,
v.

ORDER

M.D. McMAHON, et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. The action was accordingly referred to the

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undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(21). This matter is before

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the court on plaintiff’s motion for an extension of time to respond to defendant’s motion to

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dismiss. ECF No. 26.

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On February 22, 2018, defendant the County of San Joaquin filed a motion to dismiss.

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ECF No. 4. Plaintiff did not timely file a response. On May 10, 2018, the court re-set the hearing

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on the motion to give plaintiff a second opportunity to respond. ECF No. 22. The court

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specifically cautioned plaintiff that his failure to comply with the order and file a response would

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be construed as a non-opposition, and that it would result in a recommendation that his claim be

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dismissed pursuant to Federal Rule of Civil Procedure 41(b). Id. Plaintiff again failed to file a

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response or take any other action in this case. On May 11, 2018, the undersigned issued findings

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and recommendations that plaintiff’s claims against the County of San Joaquin be dismissed
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without prejudice for failure to prosecute. ECF No. 24.
On June 4, 2018, plaintiff filed a motion for a 30 day extension of time to respond to

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defendant’s motion to dismiss. ECF No. 26. The body of plaintiff’s filing indicates that plaintiff

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may have intended it to be a motion for an extension of time to file objections to the court’s

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findings and recommendations. Id. at 2. Although plaintiff has not shown good cause for his

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delay, in the interest of resolving this case on the merits and in consideration of judicial economy,

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the court will WITHDRAW its findings and recommendations at ECF No. 24 and re-set the

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hearing on defendant’s motion to dismiss (ECF No. 4). Plaintiff’s failure to timely respond to the

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motion to dismiss will be construed as a statement of non-opposition and may result in sanctions.

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In conclusion, it is hereby ORDERD that:

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1. The findings and recommendations at ECF No. 24 are withdrawn;

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2. A hearing on defendant County of San Joaquin’s motion to dismiss (ECF No. 4) is set

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on July 11, 2018 at 10:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison

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Claire;

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3. In accordance with the new hearing date, plaintiff must file his opposition to

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defendant’s motion no later than June 27, 2018. Plaintiff’s failure to respond will be

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construed as a statement of non-opposition; and

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4. Plaintiff is cautioned that his failure to abide by this court order may result in
sanctions, up to and including dismissal of his case.
DATED: June 6, 2018

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