Morgan v. Tilton et al

Filing 84

ORDER REQUIRING Plaintiff to File Opposition or Statement of Non-Opposition to Defendant Hernandez' Motion to Dismiss within Thirty Days signed by Magistrate Judge Gary S. Austin on 12/6/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLY MORGAN,

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1:08-cv-00233-LJO-GSA-PC

Plaintiff,
vs.

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JAMES TILTON, et al.,

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Defendants.

ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT
OF NON-OPPOSITION TO
DEFENDANT HERNANDEZ’
MOTION TO DISMISS WITHIN
THIRTY DAYS

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Kelly Morgan (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983.

Plaintiff filed the Complaint commencing this action on

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February 15, 2008.

This case now proceeds on Plaintiff=s Third Amended

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Complaint, filed on July 28, 2011, against defendant Correctional Officer M. Hernandez

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(ADefendant@) for retaliation and obstruction of mail, in violation of the First Amendment. 1

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(Doc. 45.)

(Doc. 1.)

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On October 30, 2013, Defendant filed a motion for the court to enforce the discovery

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order and dismiss this case, or in the alternative, to modify the scheduling order. (Doc. 82.)

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Plaintiff was required to file an opposition or a statement of non-opposition to the motion

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within twenty-one days, but has not done so. Local Rule 230(l).

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All remaining claims and defendants were dismissed from this action by the Court on October 17, 2011,
based on Plaintiff=s failure to state a claim. (Doc. 52.)
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Local Rule 230(l) provides that the failure to oppose a motion "may be deemed a waiver

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of any opposition to the granting of the motion..." The court will deem any failure to oppose

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Defendant’s= motion to dismiss as a waiver, and recommend that the motion be granted on that

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basis.

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Failure to follow a district court's local rules is a proper grounds for dismissal. U.S. v.

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Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for plaintiff's

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failure to oppose a motion to dismiss, where the applicable local rule determines that failure to

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oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th

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Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he

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did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.

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P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995);

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Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (motion for summary

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judgment cannot be granted simply as a sanction for a local rules violation, without an

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appropriate exercise of discretion).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within thirty days of the date of service of this order, Plaintiff shall file an

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opposition or statement of non-opposition to the motion to dismiss filed by Defendant on

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October 30, 2013; and

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2.

If Plaintiff fails to comply with this order, the court will deem the failure to

respond as a waiver, and recommend that the motion be granted on that basis.

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IT IS SO ORDERED.
Dated:

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December 6, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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