Gant v. Bosenko et al

Filing 40

ORDER signed by Magistrate Judge Kendall J. Newman on 10/27/11 ORDERING that within 30 days of the date of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment. The 11/3/11 hearing is VACATED.(Dillon, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TONY AUSTIN GANT, 11 12 13 14 Plaintiff, vs. TOM BOSENKO, et al., ORDER VACATING Defendants. 15 16 No. 2:09-cv-2439 KJN P NOVEMBER 3, 2011 HEARING / Plaintiff is a former state prisoner proceeding without counsel. On September 30, 17 2011, defendants filed a motion for summary judgment pursuant to Federal Rule of Civil 18 Procedure 56, and noticed the motion for hearing on November 3, 2011, before the undersigned. 19 Plaintiff has not opposed the motion. 20 Local Rule 230(l) provides in part: “Failure of the responding party to file written 21 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 22 the granting of the motion . . . .” On December 7, 2010, plaintiff was advised of the requirements 23 for filing an opposition to a motion and that failure to oppose such a motion may be deemed a 24 waiver of opposition to the motion. 25 26 Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the 1 1 inherent power of the Court.” In the order filed December 7, 2010, plaintiff was also advised 2 that failure to comply with the Local Rules may result in a recommendation that the action be 3 dismissed. 4 Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides: 5 Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits. 6 7 8 9 Id. 10 Good cause appearing, IT IS HEREBY ORDERED that: 11 1. Within thirty days of the date of this order, plaintiff shall file an opposition, if 12 any, to the motion for summary judgment. Failure to file an opposition will be deemed as 13 consent to have the: (a) pending motion granted; (b) action dismissed for lack of prosecution; 14 and (c) action dismissed based on plaintiff’s failure to comply with these rules and a court order. 15 Said failure shall result in a recommendation that this action be dismissed pursuant to Federal 16 Rule of Civil Procedure 41(b). 17 18 2. The November 3, 2011 hearing is vacated. DATED: October 27, 2011 19 20 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 gant2439.46v 23 24 25 26 2

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