McDaniel v. Chavez et al
Filing
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ORDER REQUIRING Plaintiff to File Opposition or Statement of Non-Opposition to Defendant's Motion to Dismiss within Thirty Days signed by Magistrate Judge Erica P. Grosjean on 5/2/2017. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT MCDANIEL,
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v.
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Case No. 1:10-cv-01077-LJO-EPG (PC)
Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANT’S
MOTION TO DISMISS WITHIN THIRTY
DAYS
FRANK X. CHAVEZ, et al.,
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Defendants.
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Robert McDaniel ("Plaintiff") is a former state prisoner proceeding pro se and in forma
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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.
On March 28, 2017,
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defendant Loyd filed a motion to dismiss. (ECF No. 58). Plaintiff was required to file an
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opposition or a statement of non-opposition to the motion within twenty-one days (Local Rule
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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. The Court will deem any failure to oppose the motion
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to dismiss as a waiver of any opposition, and may 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 ground 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 a 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. P.
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5(b), and time to file opposition); cf. Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013)
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(holding that a motion for summary judgment cannot be granted based on a failure to file
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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 and may recommend that the motion to
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dismiss be granted on that basis. Additionally, the Court may recommend that this
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case be dismissed for failure to prosecute and failure to comply with a court order.
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IT IS SO ORDERED.
Dated:
May 2, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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