Payne v. Martin et al

Filing 32

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/19/2012 ORDERING that, within 21 days, plaintiff shall file either an opposition to the motion to dismiss or a statement of no opposition.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE THIEL PAYNE,
Plaintiff,

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vs.

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No. 2:11-cv-1970 LKK EFB P

J. MARTIN, 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. On October 24, 2012, defendant Bax filed a motion to dismiss for failure to

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exhaust administrative remedies and informed plaintiff of the requirements for opposing such a

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motion See Fed. R. Civ. P. 12(b); Stratton v. Buck, 2012 U.S. App. LEXIS 19647, at *7-8 (9th

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Cir. Sept. 19, 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003). Plaintiff

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has not filed an opposition or otherwise responded to the motion.

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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 July 26, 2012, 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 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 19, 2012.

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