Duran v. Gibson
ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' 16 Motion to Dismiss Within Thirty Days, signed by Magistrate Judge Erica P. Grosjean on 3/14/17. Thirty-Day Deadline. (Gonzalez, R)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PEDRO F. DURAN,
Case No. 1:14-cv-01337-EPG (PC)
Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANTS’
MOTION TO DISMISS WITHIN THIRTY
A. JOHNSON, et al.,
Pedro Duran (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. ' 1983. On February 3, 2017, the defendants in this
action filed a motion to dismiss. (ECF No. 16). Plaintiff was required to file an opposition or a
statement of non-opposition to the motion within twenty-one days (Local Rule 230(l)), but did not
Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver
of any opposition to the granting of the motion and may result in the imposition of sanctions.”
However, the Court will give Plaintiff an additional thirty days to file an opposition or statement
of non-opposition to the motion to dismiss. The Court will deem any failure to oppose the motion
to dismiss as a waiver of any opposition, and may recommend that the motion be granted on that
Failure to follow a district court’s local rules is a proper ground for dismissal. U.S. v.
Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a Court may dismiss an action for a plaintiff’s
failure to oppose a motion to dismiss, where the applicable local rule determines that failure to
oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th
Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he
did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ. P.
5(b), and time to file opposition); cf. Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013)
(holding that a motion for summary judgment cannot be granted based on a failure to file
opposition, regardless of any local rule to the contrary).
Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days of the date of service of this order, Plaintiff shall file an
opposition or statement of non-opposition to the motion to dismiss; and
2. If Plaintiff fails to comply with this order, the Court will deem the failure to
respond as a waiver of any opposition and may recommend that the motion to
dismiss be granted on that basis.
IT IS SO ORDERED.
March 14, 2017
UNITED STATES MAGISTRATE JUDGE
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