Matthew V. Salinas v. Pogue et al

Filing 63

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Motion to Dismiss Filed by Defendants Gomness and Palmer 58 , signed by Magistrate Judge Gary S. Austin on 8/9/2018: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW V. SALINAS,

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Plaintiff,
vs.
KENNETH J. POGUE, et al.,
Defendants.

1:16-cv-00520-DAD-GSA-PC
ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT OF
NON-OPPOSITION TO MOTION TO
DISMISS FILED BY DEFENDANTS
GOMNESS AND PALMER
(ECF No. 58.)
THIRTY-DAY DEADLINE

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Plaintiff Matthew V. Salinas (“Plaintiff”) is a 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 Third Amended Complaint, filed on January 17, 2018, against defendants K.

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Gomness and P. Palmer (“Defendants”) in their official capacities for intentional discrimination

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in violation of the ADA.1 (ECF No. 44.)

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On July 6, 2018, Defendants filed a motion to dismiss the Third Amended Complaint.

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

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the motion within twenty-one days, but has not done so. Local Rule 230(l).

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All other claims and defendants were dismissed from this action by the court on April 27,
2018. (ECF No. 51.)
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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 Defendants’ motion to dismiss as a waiver, and recommend that the motion be granted

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on 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); cf. Marshall v. Gates, 44 F.3d 722,

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725 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993). The

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court may also dismiss this case for Plaintiff’s failure to comply with the court’s order. See

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Local Rule 110; Pagtalunan v. 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 the motion to dismiss filed by

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Defendants on July 6, 2018; and

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2.

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Plaintiff’s failure to comply with this order will result in a recommendation that
this case be dismissed.

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IT IS SO ORDERED.
Dated:

August 9, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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