Nguyen v. California Prison Health Service, et al.

Filing 58

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/10/17 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 no opposition. Plaintiff's request for an extension of time (ECF No. 57 ) is DENIED as moot. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAM BA NGUYEN,

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No. 2:13-cv-963-MCE-EFB P

Plaintiff,
v.

ORDER

CALIFORNIA PRISON HEALTH
SERVICE, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under
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42 U.S.C. § 1983.1 On September 6, 2016, defendant Elam filed a motion to dismiss on the

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ground that the second amended complaint fails to state a claim upon which relief can be granted.
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See Fed. R. Civ. P. 12(b)(6). On September 15, 2016, the court extended plaintiff’s deadline to
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oppose the motion to December 27, 2016.2 ECF No. 55. Plaintiff has not filed an opposition or a

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statement of non-opposition to defendant’s motion.
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Pursuant to Local Rule 230(l), which applies to defendant’s motion to dismiss (see ECF
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No. 19, ¶ 9), an “[o]pposition, if any, to the granting of the motion shall be served and filed by the
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responding party not more than twenty-one (21), days after the date of service of the motion.” Id.
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According to defendants, plaintiff was paroled on September 8, 2016, and subsequently
taken into custody of U.S. Immigration and Customs Enforcement. See ECF No. 52.
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Plaintiff’s October 3, 2016 request for an extension of time (ECF No. 57) is therefore
denied as moot.
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A responding party’s failure “to file an opposition or to file a statement of no opposition may be

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deemed a waiver of any opposition to the granting of the motion and may result in the imposition

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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 an

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amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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Accordingly, it is hereby ORDERED that:

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Within 21 days of the date of this order, plaintiff shall file either an opposition to the

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motion to dismiss or a statement of no opposition. Failure to comply with this order

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may result in a recommendation that this action be dismissed without prejudice.

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2. Plaintiff’s request for an extension of time (ECF No. 57) is denied as moot.
DATED: January 10, 2017.

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