Maric v. Erickson ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS MARIC, No. 1:19-cv-00775-DAD-EPG 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION TO DISMISS 14 BRIAN ERICKSON, et al., WITHOUT PREJUDICE 15 Defendants. (Doc. No. 4) 16 17 18 This matter is before the court on defendants’ unopposed motion to dismiss plaintiff’s 19 complaint. (Doc. No. 4.) Plaintiff is proceeding pro se. A hearing on the motion was held on 20 October 16, 2019. (Doc. No. 9.) Despite having failed to file any opposition to the motion and 21 despite not responding to the court’s October 4, 2019 email seeking to ascertain whether he 22 intended to file a statement of opposition or non-opposition to the pending motion, plaintiff 23 appeared at the noticed October 16, 2019 hearing on defendant’s motion to dismiss. At that 24 hearing, plaintiff was informed that, pursuant to Local Rule 230(c), “[a] failure to file a timely 25 opposition may [] be construed by the Court as a non-opposition to the motion.” Plaintiff 26 indicated that he came to the hearing prepared to orally oppose the pending motion, but that he 27 had not had sufficient time to timely file a written opposition. In light of plaintiff’s pro se status, 28 the court granted plaintiff leave to submit a written opposition to defendants’ motion to dismiss 1 | by October 23, 2019. The court warned plaintiff that if no written opposition was filed, 2 | defendant’s motion to dismiss would be granted as unopposed. 3 On October 23, 2019, plaintiff filed a response to the pending motion to dismiss. (See 4 | Doc. No. 10.) Therein, plaintiff has informed the court that he will “postpone [his] federal 5 | lawsuit against [the defendants] . . . until the state court proceedings have run their course.”! (Id. 6 | atl.) The court construes plaintiff's response as a statement of non-opposition to the pending 7 || motion to dismiss, and will therefore grant the pending motion to dismiss without prejudice.” See 8 || Trice v. Clark Cty. Sch. Dist., 376 F. App’x 789, 790 (9th Cir. 2010) (“The district court did not 9 | abuse its discretion by dismissing the claims against [the] defendant . . . because [the plaintiff] 10 | failed to file an opposition to [the defendant’s] motion to dismiss after the district court granted 11 | her an extension of time to do so and warned that noncompliance would result in dismissal.”).° 12 Accordingly, 13 1. Defendants’ motion to dismiss (Doc. No. 4) is granted without prejudice; and 14 2. The Clerk of the Court is directed to close this case. 15 | IT IS SO ORDERED. □ Dated: _ October 28, 2019 alt ae ae 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 ' As revealed at the October 16, 2019 hearing, plaintiff is currently involved in state court 24 | criminal proceedings, and it appears that his claims in this federal action are based, at least in 95 part, on events that gave rise to his arrest and pending prosecution in state court. 26 > “Without prejudice” means without prejudice to plaintiff refiling this civil action at a later time, subject to any applicable statute of limitations. 27 3 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 | 36-3(b).