Dixon v. Harrington et al

Filing 32

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendant Armas's Motion to Dismiss within Thirty Days signed by Magistrate Judge Erica P. Grosjean on 12/28/2016. (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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TRADELL M. DIXON,

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v.

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Case No. 1:13-cv-00165-DAD-EPG (PC)
Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANT ARMAS’S
MOTION TO DISMISS WITHIN THIRTY
DAYS

M. ARMAS, et al.,
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Defendants.
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Tradell Dixon (APlaintiff@) is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. On November 18, 2016,

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defendant M. Armas filed a motion to dismiss. (ECF No. 19). 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 has not done 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….” 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 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 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

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Defendant M. Armas; 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 and may recommend that the motion to dismiss be granted on

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that basis.

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IT IS SO ORDERED.
Dated:

December 28, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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