Morris v. Jennings et al.

Filing 40

ORDER signed by Magistrate Judge Deborah Barnes on 9/22/2016 ORDERING, within 20 days, plaintiff shall file an opposition, if any, to the 24 motion to revoke ifp status. Failure to file file an opposition shall result in a recommendation that this action be dismissed pursuant to Fed.R.Civ.P. 41(b).(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON E. MORRIS,

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No. 2:13-cv-1134 TLN DB P

Plaintiff,
v.

ORDER

JENNINGS, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding with this civil rights action brought pursuant to 42

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U.S.C. § 1983. On January 21, 2016, defendants filed a motion to revoke plaintiff’s in forma

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pauperis status. When plaintiff did not oppose that motion, the court ordered this action

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dismissed without prejudice. (ECF Nos. 33, 34.) However, in June, plaintiff filed a document

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explaining that he had been hospitalized during part of the period in which he was required to

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respond to defendants’ motion. (ECF No. 36.) In response, on July 11, 2016, the court revoked

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the order dismissing this case, re-opened it, and provided plaintiff a 60-day period to file any

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opposition to the motion to revoke plaintiff’s in forma pauperis status. (ECF No. 37.) That 60

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day period has now expired.

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

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

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the granting of the motion . . . .” Id. On November 12, 2015, plaintiff was advised of the
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requirements for filing an opposition to a motion and that failure to oppose such a motion may be

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deemed a waiver of opposition to the motion. (ECF No. 21.)
Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for

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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” Id. In the order filed November 12, plaintiff was also advised that failure to comply

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with the Local Rules may result in a recommendation that the action be 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.
Good cause appearing, IT IS HEREBY ORDERED that, within twenty days from the date

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of this order, plaintiff shall file an opposition, if any, to the motion to revoke in forma pauperis

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status. Failure to file an opposition will be deemed as consent to have the: (a) action dismissed

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for lack of prosecution; and (b) action dismissed based on plaintiff’s failure to comply with these

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rules and a court order. Said failure shall result in a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: September 22, 2016

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