Duran v. Gibson

Filing 18

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)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PEDRO F. DURAN,

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v.

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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
DAYS

A. JOHNSON, et al.,
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Defendants.
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Pedro Duran (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. On February 3, 2017, the defendants in this

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action filed a motion to dismiss. (ECF No. 16). Plaintiff was required to file an opposition or a

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statement of non-opposition to the motion within twenty-one days (Local Rule 230(l)), but did not

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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 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; 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.

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IT IS SO ORDERED.
Dated:

March 14, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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