Ortiz v. Reynolds et al

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/28/11 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 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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JOSE B. ORTIZ,
Plaintiff,

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vs.
REYNOLDS, et al.,
Defendants.

ORDER
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No. CIV S-10-1380 EFB P

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

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U.S.C. § 1983. On September 6, 2011, defendant Miranda filed a motion to dismiss on the

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ground that the amended complaint fails to state a claim upon which injunctive relief can be

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granted. See Fed. R. Civ. P. 12(b)(6). Plaintiff has not filed an opposition or a statement of no

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opposition to the motion to dismiss.

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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 with the Clerk by the responding

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party not more than eighteen (18) days, plus three (3) days for mailing or electronic service, after

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the date of service of the motion.” Id. A responding party’s failure “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 and may result in the imposition of sanctions.” Id. Furthermore, a party’s failure to

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comply with any order or with the Local Rules “may be grounds for imposition of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” Local Rule

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110. The court may recommend that an action be dismissed with or without prejudice, as

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appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in dismissing pro se plaintiff’s

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complaint for failing to obey an order to re-file an amended complaint to comply with Federal

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Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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pro se plaintiff’s failure to comply with local rule regarding notice of change of address

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affirmed).

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On November 3, 2010, the court advised 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 a recommendation that this action be dismissed

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without prejudice.

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DATED: November 28, 2011.

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