Tenore v. Horowitz et al

Filing 45

ORDER signed by Magistrate Judge Kendall J. Newman on 12/19/2018 ORDERING, within 30 days, plaintiff shall file an opposition, if any, or a statement of non-opposition, to the 38 motion for summary judgment. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL TENORE,

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No. 2:17-cv-1802 KJN P

Plaintiff,

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v.

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ORDER

E. HOROWITZ, ET AL.,

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Defendants.

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On November 7, 2018, defendants filed a motion for summary judgment pursuant to

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Federal Rule of Civil Procedure 56. Defendants contend that prior to filing the instant action,

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plaintiff failed to exhaust his available administrative remedies for his delayed cancer diagnosis

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claim or for his syringe injection feeding claim.1 Plaintiff has not opposed the motion or filed a

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statement of non-opposition.
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 7, 2018, 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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Defendants do not dispute that plaintiff exhausted his administrative remedies as to his claims
about requests for in-cell feeding and a wedge pillow. (ECF No. 38-1 at 2.)
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deemed a waiver of opposition to the motion. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.

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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

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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 20, 2017, plaintiff was also advised that failure to

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comply 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 thirty days from the date

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of this order, plaintiff shall file an opposition, if any, or statement of non-opposition, to the

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motion for summary judgment. Failure to comply with this order will be deemed as consent to

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have the: (a) action dismissed for lack of prosecution; and (b) action dismissed based on

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plaintiff’s failure to comply with these rules and a court order. Such failure shall result in a

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recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: December 19, 2018

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/teno1802.nop

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