Samuels v. Ahlin et al

Filing 95

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' Motion to Dismiss within Thirty Days signed by Magistrate Judge Erica P. Grosjean on 03/14/2018. Thirty-Day Deadline. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DOUGAL SAMUELS,

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v.

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Case No. 1:10-cv-00585-DAD-EPG (PC)
Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANTS’
MOTION TO DISMISS WITHIN THIRTY
DAYS

PAM AHLIN, et al.,
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Defendants.
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Dougal Samuels ("Plaintiff") is a civil detainee proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On February 5, 2018, real party in

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interest County of Fresno filed a motion to dismiss on behalf of Andres Borgeas, Sal Quintero,

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Nathan Magsig, Brian Pacheco, and Buddy Mendes. (ECF Nos. 91-93). Plaintiff was required to

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file an opposition or a statement of non-opposition to the motion within twenty-one days (Local

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Rule 230(l)), but did not do so.

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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 and may result in the imposition of sanctions.”

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However, the Court will give Plaintiff an additional thirty days to file an opposition or statement

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of non-opposition to the motion to dismiss.

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The Court will deem the failure to oppose the motion to dismiss as a waiver of any

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opposition, and may recommend that the motion be granted on that basis. Additionally, if
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Plaintiff fails to oppose the motion or file a statement of non-opposition, the Court may

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recommend that this case be dismissed for failure to prosecute and failure to comply with a court

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order.

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Failure to follow a district court’s local rules is a proper ground for dismissal. See, e.g.,

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U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a Court may dismiss an action for a

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

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failure to oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d

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52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff

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contended he did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to

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Fed. R. Civ. P. 5(b), and time to file opposition); cf. Heinemann v. Satterberg, 731 F.3d 914, 916

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(9th Cir. 2013) (holding that a motion for summary judgment cannot be granted based on a failure

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to file opposition, regardless of any local rule to the contrary).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within thirty days from 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; and

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2. If Plaintiff fails to comply with this order, the Court will deem the failure to

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respond as a waiver of any opposition to the motion to dismiss and may

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recommend that the motion be granted on that basis. Additionally, the Court may

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recommend that this case be dismissed for failure to prosecute and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

March 14, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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