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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 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., 15 Defendants. (ECF No. 58.) 16 THIRTY-DAY DEADLINE 17 18 I. BACKGROUND 19 Damian T. Doster (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds 21 with Plaintiff’s First Amended Complaint filed on March 25, 2016, against defendants Chief 22 Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sergeant Sarah Leon, and Maintenance 23 Engineer Ric Pavich, on Plaintiff’s claim concerning deprivation of hot water and related 24 negligence claims. (ECF No. 13.) 25 On July 31, 2017, Defendant Leon filed a motion to compel, requesting dismissal of this 26 case for Plaintiff’s failure to comply with the court’s April 13, 2017, discovery order. (ECF 27 No. 58.) Plaintiff was required to file an opposition or a statement of non-opposition to the 28 motion within twenty-one days, but has not done so. Local Rule 230(l). 1 1 Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a 2 waiver of any opposition to the granting of the motion . . .” The court may deem any failure to 3 oppose Defendant Leon’s motion as a waiver, and recommend that the motion be granted on 4 that basis. 5 Failure to follow a district court’s local rules is a proper grounds for dismissal. U.S. v. 6 Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for the 7 plaintiff’s failure to oppose a motion to dismiss, where the applicable local rule determines that 8 failure to oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 9 F.3d 52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where 10 plaintiff contends he did not receive motion to dismiss, where plaintiff had adequate notice, 11 pursuant to Fed. R. Civ. P. 5(b), and time to file opposition). The court may also dismiss this 12 case for Plaintiff’s failure to comply with the court’s order. See Local Rule 110; Pagtalunan v. 13 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Within thirty days of the date of service of this order, Plaintiff shall file an 16 opposition or statement of non-opposition to Defendant Leon’s motion to 17 compel, filed on July 31, 2017; and 18 2. 19 Plaintiff’s failure to comply with this order may result in the dismissal of this action. 20 21 22 23 IT IS SO ORDERED. Dated: September 29, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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