Jones v. Swingle et al

Filing 99

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/29/13 ORDERING that within 21 days of the date of this order, plaintiff shall file either an opposition to the motion to dismiss or a statement of no opposition. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK JONES,
Plaintiff,

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vs.
D. SWINGLE, et al.,
Defendants.

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ORDER
/

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No. 2:09-cv-0619 GEB EFB P

Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. On March 28, 2013, defendants filed a motion to dismiss for failure to

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exhaust administrative remedies, and on April 4, 2013, the court informed plaintiff of the

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requirements for opposing such a motion. See Fed. R. Civ. P. 12(b); Stratton v. Buck, 697 F.3d

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1004, 1008 (9th Cir. 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003).

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The time for acting has passed, and plaintiff has not filed an opposition or otherwise responded

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to the motion.

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In cases in which one party is incarcerated and proceeding without counsel, motions
ordinarily are submitted on the record without oral argument. Local Rule 230(l).1 “Opposition,

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This rule continues to apply despite plaintiff’s release from custody. See Dckt. No. 89.
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if any, to the granting of the motion shall be served and filed by the responding party not more

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than twenty-one (21), days after the date of service of the motion.” Id. A responding party’s

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failure “to file an opposition or to file a statement of no opposition may be deemed a waiver of

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any opposition to the granting of the motion and may result in the imposition of sanctions.” Id.

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Furthermore, a party’s failure to comply with any order or with the Local Rules “may be

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grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” Local Rule 110. The court may recommend that an

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action be dismissed with or without prejudice, as appropriate, if a party disobeys an order or the

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Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not

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abuse discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-file

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an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856

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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local

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rule regarding notice of change of address affirmed).

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On November 29, 2013, the court reminded plaintiff of the requirements for filing an

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opposition to the motion, that failure to oppose such a motion may be deemed a waiver of

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opposition to the motion and that failure to comply with the Local Rules may result in a

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recommendation of dismissal.

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Accordingly, it is hereby ORDERED that, within 21 days of the date of this order,

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plaintiff shall file either an opposition to the motion to dismiss or a statement of no opposition.

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Failure to comply with this order may result in this action being dismissed without prejudice.

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DATED: April 29, 2013.

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