Opinion
1:18-cv-01534 AWI-GSA-PC
09-21-2021
GILBERTO CHAVEZ, Plaintiff, v. J. DOE #1, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF NON-OPPOSITION TO MOTION TO DISMISS FILED BY DEFENDANT SALINAS (ECF No. 50.) THIRTY-DAY DEADLINE
Gary S. Austin UNITED STATES MAGISTRATE JUDGE
Plaintiff Gilberto Chavez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's Second Amended Complaint, filed on February 20, 2020, against defendant Celina Salinas (“Defendant”) for acting with deliberate indifference in violation of the Eighth Amendment. (ECF No. 26.)
All other claims and defendants were dismissed from this action by the court on December 12, 2020. (ECF No. 41.)
On April 22, 2021, Defendant filed a motion to dismiss the Second Amended Complaint. (ECF No. 50.) Plaintiff was required to file an opposition or a statement of non-opposition to the motion within twenty-one days, but has not done so. Local Rule 230(l).
Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver of any opposition to the granting of the motion . . .” The court may deem any failure to oppose Defendant's motion to dismiss as a waiver, and recommend that the motion be granted on that basis.
Failure to follow a district court's local rules is a proper grounds for dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for the plaintiff's failure to oppose a motion to dismiss, where the applicable local rule determines that failure to oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed.R.Civ.P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993). The court may also dismiss this case for Plaintiff's failure to comply with the court's order. See Local Rule 110; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
Plaintiff shall be ordered to file an opposition, or statement of non-opposition, to Defendant's motion to dismiss within thirty days.
Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days of the date of service of this order, Plaintiff shall file an opposition or statement of non-opposition to the motion to dismiss filed by Defendant Salinas on April 22, 2021; and
2. Plaintiff's failure to comply with this order will result in a recommendation that this case be dismissed.
IT IS SO ORDERED.