Mester v. Dickinson et al

Filing 92

ORDER signed by Magistrate Judge Kendall J. Newman on 7/11/11 ORDERING that the Clerk is directed to send plft a copy of the dft's 53 Motion; Response to motion due by 8/1/2011; dft's reply to response due within 7 days thereafter. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MORRIS MESTER,

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Plaintiff,

No. 2:09-cv-3307 FCD KJN P

vs.
K. DICKINSON, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel. On November 18, 2010,

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defendant Miller1 filed a motion to dismiss and motion for summary judgment. The action was

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subsequently stayed, and on June 24, 2011, the stay was lifted, and plaintiff was granted an

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extension of time in which to oppose the motion. On July 5, 2011, plaintiff filed a document

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entitled “Responding to Summary Judgment Motion . . .” in which plaintiff claims he has

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misplaced the motion and therefore cannot timely respond. Plaintiff claims he is not stalling, but

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that with all the cell searches and prison transfers, he cannot find his copy of the motion.

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Even litigants proceeding without counsel are required to pay for copies of court
filings. Plaintiff is prosecuting his own civil rights action and is required to maintain his own

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Defendants Sinkovich and Robertson joined in the motion, but were subsequently
dismissed. (Dkt. No. 55.)
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records of court actions. However, given the stale nature of this motion, the court directs the

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Clerk of Court to provide plaintiff a copy of the motion in order to expedite resolution of this

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stale motion. Plaintiff is cautioned, however, that it is not inclined to provide plaintiff an

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extension of time to respond to the motion, nor to provide plaintiff with copies of any other

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documents filed in this action.

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In addition, plaintiff claims his complaint “is not all about [defendant] Miller.”

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(Dkt. 91 at 1.) Plaintiff is reminded that the pending motion was filed by defendant Miller.

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Therefore, plaintiff need only address plaintiff’s allegations against defendant Miller. Plaintiff

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should not address any other defendant in the opposition to the motion.

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Finally, given the stale nature of defendant Miller’s motion, plaintiff is cautioned

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that the court will not grant any further extensions of time to respond to the pending motion.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written opposition or

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to file a statement of no opposition may be deemed a waiver of any opposition to the granting of

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the motion . . . .” On August 13, 2010, plaintiff was advised of the requirements for filing an

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

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opposition to the motion.

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Local Rule 110 provides that failure to comply with the Local Rules “may be

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

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inherent power of the Court.” In the order filed August 10, 2010, plaintiff was also advised that

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failure to comply with the Local Rules may result in a recommendation that the action be

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dismissed.

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Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

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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.

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Id.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to send plaintiff a copy of defendant Miller’s

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November 18, 2010 motion, with attachments (Dkt. Nos. 53-1 & 53-2);

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2. On or before August 1, 2011, plaintiff shall file an opposition, if any, to the

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motion to dismiss and for summary judgment. Failure to file a timely opposition will be deemed

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as consent to have the: (a) pending motion granted; (b) action dismissed for lack of prosecution;

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and (c) action dismissed based on plaintiff’s failure to comply with these rules and a court order.

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Such failure shall result in a recommendation that defendant Miller’s motion be granted and

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plaintiff’s claims against defendant Miller be dismissed pursuant to Federal Rule of Civil

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Procedure 41(b); and

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3. Defendant Miller’s reply, if any, shall be filed seven days thereafter.
DATED: July 11, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mest3307.eot2

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