Calloway v. Veal, et al

Filing 52

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/15/12 ordering that within 21 days of the date of this order, plaintiff shall file either an opposition to the motion for summary judgment or a statement of non-opposition. (Plummer, 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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JAMISI JERMAINE CALLOWAY,
Plaintiff,

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vs.

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No. CIV S-09-2907 GEB EFB P

M. VEAL, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The Discovery and Scheduling Order initially set January 27, 2012 as the

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deadline for filing dispositive motions. Dckt. No. 26. The court later extended that deadline to

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April 16, 2012. See March 16, 2012 Order, Dckt. No. 44 (“[T]he discovery and scheduling order

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of July 14, 2011 (Dckt. No. 26) is modified to allow the parties to file dispositive motions no

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later than 30 days from the date of this order.”).

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On April 16, 2012, defendants timely filed a motion for summary judgment pursuant to

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Rule 56 of the Federal Rules of Civil Procedure. Dckt. No. 45. In support of their motion,

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defendants filed a declaration on behalf on Andreason, but it was not signed. Dckt. No. 46.

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Defendants requested an extension of time to file the signed declaration. Id. Defendants filed

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the signed declaration on April 18, 2012, with no changes to the content of the declaration.
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Dckt. No. 47. On April 19, 2012, the court granted defendants’ request for an extension of time

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to file the signed declaration in support of their motion, and deemed the April 18, 2012

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declaration timely filed. Dckt. No. 48.

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Plaintiff has not opposed the motion for summary judgment. On May 4, 2012, however,

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plaintiff objected to the motion for summary judgment on the grounds that it was due by April

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14, 2012. Plaintiff also objected to defendants’ request to file the Andreason declaration on

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April 18, 2012. Dckt. No. 49. Defendants responded to plaintiff’s objections. Dckt. No. 51. As

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noted by defendants, plaintiff is mistaken about the deadline for filing dispositive motions.

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Dispositive motions were due on April 16, 2012, and defendants’ motion is therefore timely.

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Defendants assert that “[d]ue to circumstances beyond defense counsel and Dr. Andreason’s

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control, the signed declaration of defendant Dr. Andreason was unavailable when the motion was

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filed on April 16, 2012.” Dckt. No. 51 at 2. The court has deemed that declaration timely filed,

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and plaintiff fails to show how that order prejudices him or warrants reconsideration. Plaintiff

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must now file a response to defendants’ motion for summary judgment.

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In cases in which one party is incarcerated and proceeding without counsel, motions

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ordinarily are submitted on the record without oral argument. Local Rule 230(l). “Opposition, if

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any, to the granting of the motion shall be served and filed by the responding party not more than

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

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

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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 May 11, 2011, the court advised plaintiff of the requirements for filing an opposition

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

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motion, and that failure to comply with the Local Rules may result in a recommendation of

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dismissal.

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Accordingly, it is hereby ORDERED that, within twenty-one days of the date of this

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order, plaintiff shall either file either an opposition to the motion for summary judgment or a

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statement of non-opposition. Failure to comply with this order will result in a recommendation

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that this action be dismissed without prejudice.

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DATED: May 15, 2012.

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