Gradford v. Stanislaus Public Safety Center et al

Filing 55

ORDER REQUIRING Plaintiff to FILE Opposition or Statement of Non-Opposition to Defendant Flores's Motion to Dismiss within Twenty-One Days signed by Magistrate Judge Gary S. Austin on 10/9/2020. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,
Plaintiff,

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v.
STANISLAUS PUBLIC SAFETY
CENTER, et al.,
Defendants.

1:17-cv-01248-DAD-GSA-PC
ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT OF
NON-OPPOSITION TO DEFENDANT
FLORES’S MOTION TO DISMISS,
WITHIN TWENTY-ONE DAYS
(ECF No. 54.)

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William J. Gradford (“Plaintiff”) is a former 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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against defendant Sergeant Flores1 (“Defendant”) for use of excessive force in violation of the

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Eighth Amendment.

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On September 8, 2020, defendant Flores filed a motion to dismiss. (ECF No. 54.)

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Plaintiff was required to file an opposition or a statement of non-opposition to the motion within

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

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Sued as Sergeant Florres.
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Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver

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of any opposition to the granting of the motion . . .” The court may deem any failure to oppose

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Defendant’s motion to dismiss as a waiver, and recommend that the motion be granted on that

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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 plaintiff’s

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failure to oppose a motion to dismiss, where the applicable local rule determines that failure to

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oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th

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Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he

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did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ.

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P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995);

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Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (motion for summary

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judgment cannot be granted simply as a sanction for a local rules violation, without an appropriate

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exercise of discretion). The court may also dismiss this case for Plaintiff’s failure to comply with

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the court’s order. See 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 twenty-one 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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Defendant Flores on September 8, 2020; and finally

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2.

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Plaintiff’s failure to comply with this order may result in the dismissal of this
action.

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IT IS SO ORDERED.
Dated:

October 9, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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