Clemente v. Parciasepe et al

Filing 35

ORDER signed by Magistrate Judge Kendall J. Newman on 1/6/2015 ORDERING that within 30 days, plaintiff shall file an opposition to the 29 motion for summary judgment; defendant's reply due within seven days thereafter. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MARCELINO CLEMENTE,

12
13
14
15

No. 2:14-cv-0611 MCE KJN P

Plaintiff,
v.

ORDER

T. PARCIASEPE, et al.,
Defendants.

16
17

Defendant Parciasepe’s motion for partial summary judgment based on plaintiff’s alleged

18

failure to exhaust his administrative remedies as to his retaliation claim prior to filing the instant

19

action is pending. On December 8, 2014, plaintiff filed a request that defendant’s motion for

20

summary judgment be denied based on defendant’s failure to respond to plaintiff’s discovery

21

requests, or to grant plaintiff an extension of time so that he could file a motion to compel. On

22

December 16, 2014, defendant filed a reply, noting that his motion is solely based on plaintiff’s

23

deposition testimony that he only filed one 602 appeal solely regarding the January 10, 2013

24

incident underlying plaintiff’s Eighth Amendment claim, and therefore failed to exhaust the First

25

Amendment retaliation claim. Moreover, defendant states that after the court continued the

26

discovery deadline, defendant filed timely discovery responses.

27
28

As noted by defendant, plaintiff’s request for extension of time was based on arguments
concerning the merits of his claims rather than the issue of exhaustion. However, in an

1

abundance of caution, now that defendant has provided discovery responses, the court will grant

2

plaintiff an additional thirty days in which to file an opposition to the motion for summary

3

judgment based on plaintiff’s alleged failure to first exhaust his administrative remedies. Plaintiff

4

is cautioned that he should not include arguments concerning the merits of his claims. Rather,

5

plaintiff must address the issue of exhaustion of administrative remedies in connection with his

6

retaliation claim against defendant Parciasepe.1 No additional extension of time will be granted.

7

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

8

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

9

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

10

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

11

Good cause appearing, IT IS HEREBY ORDERED that within thirty days from the date

12

of this order, plaintiff shall file an opposition to the motion for summary judgment. Defendant’s

13

reply, if any, shall be filed within seven days thereafter.

14

Dated: January 6, 2015

15
16
17
18
19
20
21
22
23

/clem0611.36

1

Local Rule 230(l) provides in part: “Failure of the responding party to file written opposition
or to file a statement of no opposition may be deemed a waiver of any opposition to the granting
of the motion . . . .” On November 24, 2014, plaintiff was advised of the requirements for filing
an opposition to a motion and that failure to oppose such a motion may be deemed a waiver of
opposition to the motion. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and
Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for
imposition of any and all sanctions authorized by statute or Rule or within the inherent power of
the Court.” In the order filed May 23, 2014, plaintiff was also advised that failure to comply
with the Local Rules may result in a recommendation that the action be dismissed.
Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

24
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.

25
26
27
28

Id.
2