Risher v. Libby, et al.
ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' Motion to Dismiss 25 within Thirty Days,signed by Magistrate Judge Erica P. Grosjean on 10/19/2017. (Case Management Deadline: 30-Day Deadline) (Martin-Gill, S)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:17-cv-00087-EPG (PC)
Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANTS’
MOTION TO DISMISS (ECF NO. 25)
WITHIN THIRTY DAYS
DR. EBINOSA, et al.,
Richard Risher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C. § 1983.
On September 18, 2017,
defendants Igbinosa,1 Jacques, Rasheed, and Trevino filed a partial motion to dismiss. (ECF No.
25). Plaintiff was required to file an opposition or a statement of non-opposition to the motion
within twenty-one days (Local Rule 230(l)), but did not do so.
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 and may result in the imposition of sanctions.”
However, the Court will give Plaintiff an additional thirty days to file an opposition or statement
of non-opposition to the motion to dismiss. The Court will deem failure to oppose the motion to
dismiss as a waiver of any opposition, and may grant the motion (or recommend that the motion
be granted) on that basis.
Plaintiff’s complaint refers to Igbinosa as Ebinosa.
Failure to follow a district court’s local rules is a proper ground for dismissal. U.S. v.
Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a Court may dismiss an action for a 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); cf. Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013)
(holding that a motion for summary judgment cannot be granted based on a failure to file
opposition, regardless of any local rule to the contrary).
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
1. Within thirty days from the date of service of this order, Plaintiff shall file an
opposition or statement of non-opposition to the partial motion to dismiss filed by
Igbinosa, Jacques, Rasheed, and Trevino; and
2. If Plaintiff fails to comply with this order, the Court will deem the failure to
respond as a waiver of any opposition and may grant the motion (or recommend
that the motion be granted) on that basis. Additionally, the Court may dismiss this
case (or recommend that this case be dismissed) for failure to prosecute and failure
to comply with a court order.
IT IS SO ORDERED.
October 19, 2017
UNITED STATES MAGISTRATE JUDGE
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