Opinion
No. CIV S-08-2528 KJM P.
November 17, 2009
On June 2, 2009, defendants filed a motion to dismiss on the ground that the petition was filed outside the statute of limitations. On August 5, 2009, the court directed plaintiff to file his opposition or statement of non-opposition to the motion and warned plaintiff that failure to comply could result in dismissal of the action.
On August 18, 2009, petitioner complained that he had not received a copy of the motion to dismiss; respondent reserved the motion on August 21.
Petitioner still has not filed a response or statement of non-opposition.
Local Rule 78-230(m) currently requires that opposition to motions filed in prisoner cases be filed within twenty-one days and further provides: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion. . . ." On August 5, 2009, plaintiff was ordered to file an opposition within thirty days and advised that the failure to do so could be the basis for an order dismissing the action. Fed.R.Civ.P. 41(b). The thirty day period has now elapsed and plaintiff has not filed an opposition to the motion or otherwise responded to the court's order. For these reasons, plaintiff's failure to oppose is deemed a waiver of opposition to the granting of the motion and a failure to prosecute.
Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice for failure to prosecute.