Ellinberg v. Foulk et al

Filing 19

ORDER signed by Magistrate Judge Allison Claire on 12/30/16 ordering plaintiff shall, within 21 days after the filing date of this order, file and serve an opposition or statement of non-opposition to defendant's pending motion for summary judgment. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN ELLINBERG,

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No. 2:15-cv-1458 JAM AC P

Plaintiff,

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v.

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F.FOULK, et al.,

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ORDER

Defendants.

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On November 15, 2016, sole remaining defendant Dr. Rosca, M.D., filed a motion for

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summary judgment pursuant to Federal Rule of Civil Procedure 56. See ECF No. 18. On the

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same date, defendant served plaintiff with the motion by mail. Id. at 3. Pursuant to Local Rule

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230(l), plaintiff’s opposition or statement of non-opposition was due 21 days after service of the

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motion. This deadline has now expired.
Plaintiff has not opposed defendant’s motion or otherwise communicated with the court.

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Review of the Inmate Locator website operated by the California Department of Corrections and

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Rehabilitation indicates that plaintiff remains incarcerated at High Desert State Prison,1 where he

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was served with defendant’s motion. Defendant’s motion notified plaintiff of the requirements

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See http://inmatelocator.cdcr.ca.gov/search.aspx. See also Fed. R. Evid. 201 (court may take
judicial notice of facts that are capable of accurate determination by sources whose accuracy
cannot reasonably be questioned).
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for opposing a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 957

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(9th Cir. 1998) (en banc). See ECF No. 18 at 19-22. By order filed November 3, 2015, this court

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advised plaintiff of the same requirements. See ECF No. 11 at 6.

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The court also informed plaintiff, pursuant to Local Rule 230(l), that failure to oppose a

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motion may be deemed a waiver of opposition. Id. Additionally, Local Rule 110 provides that

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failure to comply with court rules or any order of court “may be grounds for imposition of any

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and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

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Further, Federal Rule of Civil Procedure Rule 41(b) provides for dismissal of an action “[i]f the

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plaintiff fails to prosecute or to comply with these rules or a court order.”

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Although it appears that plaintiff has abandoned this case, the court will, in an abundance

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of caution, accord plaintiff additional time to respond to defendant’s motion. Plaintiff may file an

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opposition in accordance with the Rand requirements or file a statement of non-opposition.

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Failure to file any response will result in the dismissal of this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall, within 21 days after the filing date of this order, file and serve an

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opposition or statement of non-opposition to defendant’s pending motion for summary judgment.

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2. Plaintiff’s failure to respond to this order will result in the dismissal of this action
without prejudice pursuant to Federal Rule of Civil Procedure 41(b).
SO ORDERED.
DATED: December 30, 2016

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