Risher v. Libby, et al.

Filing 34

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)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 10 RICHARD RISHER, 11 v. 12 13 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., 14 Defendants. 15 16 Richard Risher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 17 with this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 18, 2017, 18 defendants Igbinosa,1 Jacques, Rasheed, and Trevino filed a partial motion to dismiss. (ECF No. 19 25). Plaintiff was required to file an opposition or a statement of non-opposition to the motion 20 within twenty-one days (Local Rule 230(l)), but did not do so. 21 Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver 22 of any opposition to the granting of the motion and may result in the imposition of sanctions.” 23 However, the Court will give Plaintiff an additional thirty days to file an opposition or statement 24 of non-opposition to the motion to dismiss. The Court will deem failure to oppose the motion to 25 dismiss as a waiver of any opposition, and may grant the motion (or recommend that the motion 26 be granted) on that basis. 27 1 28 Plaintiff’s complaint refers to Igbinosa as Ebinosa. 1 1 Failure to follow a district court’s local rules is a proper ground for dismissal. U.S. v. 2 Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a Court may dismiss an action for a plaintiff’s 3 failure to oppose a motion to dismiss, where the applicable local rule determines that failure to 4 oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th 5 Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he 6 did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ. P. 7 5(b), and time to file opposition); cf. Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) 8 (holding that a motion for summary judgment cannot be granted based on a failure to file 9 opposition, regardless of any local rule to the contrary). 10 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 11 1. Within thirty days from the date of service of this order, Plaintiff shall file an 12 opposition or statement of non-opposition to the partial motion to dismiss filed by 13 Igbinosa, Jacques, Rasheed, and Trevino; and 14 2. If Plaintiff fails to comply with this order, the Court will deem the failure to 15 respond as a waiver of any opposition and may grant the motion (or recommend 16 that the motion be granted) on that basis. Additionally, the Court may dismiss this 17 case (or recommend that this case be dismissed) for failure to prosecute and failure 18 to comply with a court order. 19 20 21 IT IS SO ORDERED. Dated: October 19, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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