(PC) Hampton v. Austin

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GARY G. HAMPTON, JR., No. 2:20-cv-01001-KJM-DMC-P 12 Plaintiff, 13 v. ORDER LORI W. AUSTIN, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.

20 On August 17, 2022, the Magistrate Judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within the time specified therein. The Magistrate Judge recommended dismissing plaintiff’s action after the court warned plaintiff “that the failure to oppose the [pending] motion [to dismiss] could be construed as consent to the relief requested.” F&R at 1, ECF No. 32. Plaintiff timely filed objections. See Obj., ECF No. 33.

26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Local Rule 230(c) states a “failure to file a timely opposition may be construed by the Court as a non-opposition to a motion” but does not || state a failure to respond may be construed as consent to the relief requested. E.D. Cal. L.R. | 230(c). Courts may either dismiss complaints due to plaintiffs non-opposition or consider the || complaint’s underlying merits regardless of the non-opposition. Compare Ghazali v. Moran, | 46 F.3d 52, 54 (9th Cir. 1995) (dismissing case with prejudice due to plaintiff's non-opposition) || with Elec. Recyclers Int'l, Inc. v. Calbag Metals Co., No. 1:14-CV-01352, 2015 WL 1529490, at || *2 (E.D. Cal. Apr. 2, 2015) (“Although Calbag’s motion now faces no opposition, the court’s || duty remains to consider its underlying merits.”).

8 Here, this court has discretion to dismiss the case on a procedural basis due to □□□□□□□□□□□ || non-opposition. Plaintiff objects to dismissal, claiming for the first time that due to a learning || disability, counsel is needed “to adequately respond to these [sic] request to dismiss my | complaint.” Obj. at 1. In light of plaintiffs objections, which raise new arguments not || previously considered by the magistrate judge, the court declines to adopt the findings and || recommendations. The matter is referred again to the magistrate judge for all further pretrial || proceedings, including consideration of whether petitioner qualifies for appointment of counsel.

15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The court declines to adopt the magistrate judge’s finding and recommendations; and 17 2. This matter is referred back to the assigned magistrate judge for all further pretrial 18 proceedings, including consideration of whether petition qualified for appointment of 19 counsel.

21 || DATED: February 21, 2023.

23 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE