Doster v. Beard et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAMIAN T. DOSTER,
ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT
OF NON-OPPOSITION TO DEFENDANT
LEON’S MOTION TO COMPEL
WITHIN THIRTY DAYS
JEFFREY A. BEARD, et al.,
(ECF No. 58.)
Damian T. Doster (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds
with Plaintiff’s First Amended Complaint filed on March 25, 2016, against defendants Chief
Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sergeant Sarah Leon, and Maintenance
Engineer Ric Pavich, on Plaintiff’s claim concerning deprivation of hot water and related
negligence claims. (ECF No. 13.)
On July 31, 2017, Defendant Leon filed a motion to compel, requesting dismissal of this
case for Plaintiff’s failure to comply with the court’s April 13, 2017, discovery order. (ECF
No. 58.) Plaintiff was required to file an opposition or a statement of non-opposition to the
motion within twenty-one days, but has not done so. Local Rule 230(l).
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 . . .” The court may deem any failure to
oppose Defendant Leon’s motion as a waiver, and recommend that the motion be granted on
Failure to follow a district court’s local rules is a proper grounds for dismissal. U.S. v.
Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for the
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). The court may also dismiss this
case for Plaintiff’s failure to comply with the court’s order. See Local Rule 110; Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
Accordingly, IT IS HEREBY ORDERED that:
Within thirty days of the date of service of this order, Plaintiff shall file an
opposition or statement of non-opposition to Defendant Leon’s motion to
compel, filed on July 31, 2017; and
Plaintiff’s failure to comply with this order may result in the dismissal of this
IT IS SO ORDERED.
September 29, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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