Opinion
No. CV-04-1861-PCT-DGC.
November 4, 2005
ORDER
Pending before the Court is pro se Defendant Danial Johnson's "motion to respond on complaint." Doc. #32. Plaintiff has not filed a response to the motion.
At the outset of his motion, Defendant Johnson states that he intends to answer the complaint but needs more information to do so. Id. at 1. Defendant further states that his first name is Danial, not Dannell, and that he has never assaulted Plaintiff. Id. at 2. In the last sentence of his motion, Defendant moves the Court to dismiss him from this action. Id. at 2.
The Court will construe Defendant's motion as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as comp laints."). Because the motion was not so titled, however, the Court will give Plaintiff an opportunity to respond to the motion. Plaintiff shall have until November 18, 2005 to file a response. Plaintiff is advised that the Court may deem the failure to file a response a consent to the granting of the motion. See LRCiv 7.2(i); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (holding that the district court did not err in summarily granting the defendants' motion to dismiss pursuant to a local rule where the plaintiff had time to respond to the motion but failed to do so); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that the district court did not err in dismissing the plaintiff's complaint for failing to comply with a court order).
IT IS ORDERED that Plaintiff shall have until November 18, 2005 to file a response to Defendant Danial Johnson's motion to dismiss (Doc. #32).