Bailey v. Fairfield Police Department, et al

Filing 27

ORDER signed by Magistrate Judge Kendall J. Newman on 10/19/2011 ORDERING that, w/in 30 days, pltf shall file an opposition, if any, to the pending 22 motion to dismiss. (Yin, K)

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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 LEE JAMES BAILEY 11 Plaintiff, 12 No. 2:10-cv-02295 JAM KJN P vs. 13 FAIRFIELD POLICE DEPARTMENT, 14 et al., 15 Defendants. 16 ORDER / 17 On September 9, 2011, defendants filed a motion to dismiss this civil rights 18 action, pursuant to Federal Rule of Civil Procedure 12(b)(6),1 and certificate of service 19 demonstrating that the motion was served on plaintiff on the same date. (Dkt. Nos. 22, 23.) 20 Plaintiff, who is incarcerated at Solano County Jail, has not responded to the motion, and the 21 deadline for doing so has passed.2 22 23 24 1 Defendants’ noticed motion was taken off calendar pursuant to Local Rule 230(l), which provides in pertinent part that “[a]ll motions, except motions to dismiss for lack of prosecution, filed in actions wherein one party is incarcerated and proceeding in propria persona, shall be submitted upon the record without oral argument unless otherwise ordered by the Court.” 25 2 26 Local Rule 230(l) provides that a party’s “[o]pposition, if any, to the granting of the motion shall be served and filed by the responding party not more than twenty-one (21), days 1 1 Local Rule 230(l) provides that “[f]ailure of the responding party to file written 2 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 3 the granting of the motion.” Local Rule 110 provides that failure to comply with the Local Rules 4 “may be grounds for imposition of any and all sanctions authorized by statute or Rule or within 5 the inherent power of the Court.” In the order filed February 15, 2011, plaintiff was advised that 6 failure to comply with the Local Rules may result in a recommendation that this action be 7 dismissed. (Dkt. No. 10 at 5.) 8 In addition, Federal Rule of Civil Procedure 41(b) provides: 9 12 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. 13 Good cause appearing, IT IS HEREBY ORDERED that, within thirty days after 10 11 14 the filing date of this order, plaintiff shall file an opposition, if any, to the pending motion to 15 dismiss. Failure to file an opposition will be deemed as consent to have the: (a) pending motion 16 granted; (b) action dismissed for lack of prosecution; and (c) action dismissed based on 17 plaintiff’s failure to comply with the Local Rules, Federal Rules of Civil Procedure, and a court 18 order. Such failure shall result in a recommendation that this action be dismissed pursuant to 19 Federal Rule of Civil Procedure 41(b). 20 DATED: October 19, 2011 21 22 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 23 24 bail2295.nooppo.kjn 25 26 after the date of service of the motion.” 2

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