Danner v. County of San Joaquin et al

Filing 45

ORDER and ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 7/17/17: Hearing on 40 MOTION for SUMMARY JUDGMENT is continued to 9/6/2017 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. Plaintiff shall show cause, in writing, no later than 8/23/17. Plaintiff shall file an opposition to the motion, or a statement of non- opposition thereto, no later than 8/23/17. Defendants may file a reply to plaintiff's opposition, if any, on or before 8/30/17.(Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNATHAN EARL DANNER,

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No. 2:15-cv-887-MCE-EFB PS

Plaintiff,
v.

ORDER AND ORDER TO SHOW CAUSE

COUNTY OF SAN JOAQUIN, et al.,

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Defendants.

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Defendants have filed a motion for summary judgment, which is currently noticed for

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hearing on July 26, 2017.1 ECF Nos. 40, 42. Court records reflect that plaintiff has not filed an

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opposition or statement of non-opposition to the pending motion.

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Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of

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non-opposition thereto, must be served upon the moving party, and filed with this court, no later

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than fourteen days preceding the noticed hearing date or, in this instance, by July 12, 2017. Local

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Rule 230(c) further provides that “[n]o party will be entitled to be heard in opposition to a motion

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at oral arguments if opposition to the motion has not been timely filed by that party.”

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Additionally, Local Rule 260(b) provides that “[a]ny party opposing a motion for summary

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judgment or summary adjudication shall reproduce the itemized facts in the Statement of

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Undisputed Facts and admit those facts that are undisputed and deny those that are disputed,

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including with each denial a citation to the particular portions of any pleading, affidavit,

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deposition, interrogatory answer, admission, or other document relied upon in support of that

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denial.” Local Rule 260(b) further provides that “[t]he opposing party may also file a concise

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‘Statement of Disputed Facts,’ and the source thereof in the record, of all additional material facts

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as to which there is a genuine issue precluding summary judgment or adjudication,” and that

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“[t]he opposing party shall be responsible for the filing of all evidentiary documents cited in the

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opposing papers.”

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Finally, Local Rule 183, governing persons appearing in pro se, provides that failure to

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comply with the Federal Rules of Civil Procedure and Local Rules may be grounds for dismissal,

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judgment by default, or other appropriate sanctions. Local Rule 110 provides that failure to

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comply with the Local Rules “may be grounds for imposition by the Court of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” See also

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules

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is a proper ground for dismissal.”). Pro se litigants are bound by the rules of procedure, even

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though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987).

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Because plaintiff has failed to file an opposition or statement of non-opposition to

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defendants’ motion for summary judgment, as required by Local Rule 230, and has failed to

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respond to defendants’ statement of undisputed facts, as required by Local Rule 260, the hearing

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on defendants’ motion for summary judgment must be continued. Plaintiff is ordered to show

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cause why sanctions should not be imposed for failure to timely file an opposition or a statement

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of non-opposition to the pending motion and for failure to timely file a response to defendants’

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statement of undisputed facts. Plaintiff is also ordered to file an opposition to the motion or a

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statement of non-opposition thereto and a response to defendants’ statement of undisputed facts.

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Failure to comply with this order may result in a recommendation that defendants’ motion for

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summary judgment be granted and/or the case dismissed for failure to comply with court orders

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and this court’s Local Rules. See Fed. R. Civ. P. 41(b).
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The court informs plaintiff of the following with respect to opposing a motion for

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summary judgment under Federal Rule of Civil Procedure 56: Such a motion is a request that the

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court grant judgment in defendant’s favor without trial. A motion for summary judgment will set

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forth the facts that defendant asserts are not reasonably subject to dispute and that entitle it to

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judgment under applicable law. To oppose a motion for summary judgment, plaintiff may file

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one or more affidavits or declarations setting forth the material facts that plaintiff believes are

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subject to reasonable dispute, as long as the person who signs it has personal knowledge of the

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facts stated. Plaintiff may rely on written records, but he must prove they are what plaintiff assert

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them to be. Plaintiff may rely on all or any part of responses to discovery propounded in this

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case, i.e., answers to interrogatories, admissions and deposition transcripts. If plaintiff fails to

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contradict defendant’s evidence with counter-affidavits or other admissible evidence, the court

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may accept defendant’s evidence as true and grant the motion. If there is good reason why such

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facts are not available to plaintiff when they are required to oppose a motion for summary

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judgment, the court will consider a request to postpone considering the motion. If plaintiff does

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not file a written opposition to the motion or a request to postpone consideration of it, the court

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may consider the failure to act as a waiver of opposition to the defendant’s motion. If the court

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grants defendant’s motion, whether opposed or unopposed, judgment will be entered for

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defendant without a trial and the case will be closed.

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Accordingly, good cause appearing, it is hereby ORDERED that:

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1. The hearing on defendants’ motion for summary judgment (ECF Nos. 40) is continued

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to September 6, 2017.
2. Plaintiff shall show cause, in writing, no later than August 23, 2017, why sanctions

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should not be imposed for failure to timely file an opposition or a statement of non-opposition to

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the pending motion.

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3. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto,
no later than August 23, 2017.
4. Failure of plaintiff to file an opposition to the motion will be deemed a statement of
non-opposition thereto, and may result in a recommendation that defendants’ motion be granted
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and/or the case dismissed for failure to comply with court orders and this court’s Local Rules.

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See Fed. R. Civ. P. 41(b).

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5. Defendants may file a reply to plaintiff’s opposition, if any, on or before August 30,

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2017.

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DATED: July 17, 2017.

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