Doster v. Beard et al

Filing 61

ORDER Requiring Plaintiff to File Opposition or Statement on Non-Opposition to Defendant Leon's Motion to Compel within Thirty Days signed by Magistrate Judge Gary S. Austin on 09/29/2017. Response due 11/02/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:15-cv-01415-DAD-GSA-PC

DAMIAN T. DOSTER,

ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT
OF NON-OPPOSITION TO DEFENDANT
LEON’S MOTION TO COMPEL
WITHIN THIRTY DAYS

vs.
JEFFREY A. BEARD, et al.,

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Defendants.

(ECF No. 58.)

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THIRTY-DAY DEADLINE

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I.

BACKGROUND

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Damian T. Doster (“Plaintiff”) is a 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. This case now proceeds

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with Plaintiff’s First Amended Complaint filed on March 25, 2016, against defendants Chief

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Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sergeant Sarah Leon, and Maintenance

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Engineer Ric Pavich, on Plaintiff’s claim concerning deprivation of hot water and related

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negligence claims. (ECF No. 13.)

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On July 31, 2017, Defendant Leon filed a motion to compel, requesting dismissal of this

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case for Plaintiff’s failure to comply with the court’s April 13, 2017, discovery order. (ECF

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No. 58.) Plaintiff was required to file an opposition or a statement of non-opposition to the

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motion within twenty-one days, but has not done so. Local Rule 230(l).
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Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a

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waiver of any opposition to the granting of the motion . . .” The court may deem any failure to

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oppose Defendant Leon’s motion as a waiver, and recommend that the motion be granted on

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that 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 the

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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

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F.3d 52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where

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

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pursuant to Fed. R. Civ. P. 5(b), and time to file opposition). The court may also dismiss this

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case for Plaintiff’s failure to comply with the court’s order. See Local Rule 110; Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002)

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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 Defendant Leon’s motion to

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compel, filed on July 31, 2017; and

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2.

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Plaintiff’s failure to comply with this order may result in the dismissal of this
action.

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IT IS SO ORDERED.
Dated:

September 29, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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