Humes v. Lukenbill et al

Filing 50

ORDER signed by Magistrate Judge Kendall J. Newman on 5/3/2021 ORDERING that, within fourteen days from the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file an opposition will be deemed as c onsent to have the: action dismissed for lack of prosecution; and action dismissed based on plaintiff's failure to comply with these rules and a court order. Such failure shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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Plaintiff,

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No. 2:17-cv-2609 MCE KJN P

v.

ORDER

LUKENBILL et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action proceeds on plaintiff’s second amended complaint against sole

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remaining defendant Lukenbill.1 (ECF No. 16.) On March 31, 2021, defendant Deputy Brandon

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Lukenbill filed a motion to dismiss. Plaintiff has not opposed the motion.
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 May 18, 2018, plaintiff was advised of the requirements

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In an earlier complaint, plaintiff raised claims against Placer County and other defendants.
Such claims were dismissed without prejudice, and plaintiff was granted leave to amend and
advised of the requirements for pursuing such claims. (ECF No. 11 at 4-5.) Although plaintiff
again named Placer County as a defendant in the defendants’ section of the second amended
complaint (ECF No. 16 at 2), plaintiff included no charging allegations as to the county. (ECF
No. 16, passim.)
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for filing an opposition to a motion and that failure to oppose such a motion may be deemed a

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waiver of opposition to the motion. (ECF No. 23 at 2-3.)

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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 May 18, 2018, 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 fourteen days from the

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date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file

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an opposition will be deemed as consent to have the: (a) action dismissed for lack of prosecution;

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and (b) action dismissed based on plaintiff’s failure to comply with these rules and a court order.

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Such failure shall result in a recommendation that this action be dismissed pursuant to Federal

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Rule of Civil Procedure 41(b).

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Dated: May 3, 2021

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/hume2609.nop

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