Garcia v. Martel

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/31/09 ORDERING that within 30 days of the date of this order, petitioner shall file either an opposition to the motion to dismiss or a statement of no opposition; Clerk of the Court is directed to terminate docket numbers 23 and 25 , as they do not request any form of relief from the court. (Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. MICHAEL MARTEL, Warden, Respondent. / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On May 22, 2009, respondent filed a motion to dismiss on the ground that the petition was filed beyond the one-year statute of limitations. Since then, petitioner has filed two documents styled "motion to dismiss," and two letters regarding the history of his case, which appear to be identical. Petitioner has not filed, and the court is unable to construe any of petitioner's filings, as an opposition or a statement of no opposition to respondent's motion to dismiss. A responding party's failure "to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions." L. R. 78-230(m). Failure to comply with any order or with the Local Rules "may be grounds for imposition of any and all sanctions authorized by
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DANNY GARCIA, Petitioner, No. CIV S-08-3099 GEB EFB P

ORDER

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statute or Rule or within the inherent power of the Court." L. R. 11-110. The court may recommend this action be dismissed with or without prejudice, as appropriate, if plaintiff disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1252 (9th Cir. 1992) (district court did not abuse discretion in dismissing pro se plaintiff's complaint for failing to obey an order to re-file an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff's failure to comply with local rule regarding notice of change of address affirmed). Accordingly, it is hereby ORDERED that, within 30 days of the date of this order, petitioner shall file either an opposition to the motion to dismiss or a statement of no opposition. Failure to comply with this order will result in a recommendation that this action be dismissed without prejudice. It is further ORDERED that the Clerk of the Court terminate docket numbers 23 and 25, as they do not request any form of relief from the court. Dated: August 31, 2009.

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