(PC) Borbon v. Smiley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO BORBON, No. 2: 19-cv-1464 KJN P 12 Plaintiff, 13 v. ORDER 14 D. SMILEY, et al., 15 Defendants. 16 17 On December 20, 2019, defendants filed a motion summary judgment pursuant to Federal 18 Rule of Civil Procedure 56 alleging that plaintiff failed to exhaust administrative remedies. 19 Plaintiff has not opposed the motion. 20 Local Rule 230(l) provides in part: “Failure of the responding party to file written 21 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 22 the granting of the motion . . . .” Id. On November 21, 2019 and December 20, 2019, plaintiff 23 was advised of the requirements for filing an opposition to a motion and that failure to oppose 24 such a motion may be deemed a waiver of opposition to the motion. See Rand v. Rowland, 154 25 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th 26 Cir. 1988). 27 Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for 28 imposition of any and all sanctions authorized by statute or Rule or within the inherent power of 1 | the Court.” Id. In the order filed November 21, 2019, plaintiff was also advised that failure to 2 | comply with the Local Rules may result in a recommendation that the action be dismissed. 3 Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides: 4 Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to 5 dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any 6 dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as 7 an adjudication on the merits. 8 | Id. 9 Good cause appearing, IT IS HEREBY ORDERED that, within thirty days from the date 10 | of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment. 11 | Failure to file an opposition will be deemed as consent to have the: (a) action dismissed for lack 12 | of prosecution; and (b) action dismissed based on plaintiffs failure to comply with these rules 13 | and acourt order. Such a failure shall result in a recommendation that this action be dismissed 14 | pursuant to Federal Rule of Civil Procedure 41(b). 15 | Dated: January 23, 2020 16 Ad 17 KENDALL J. Wha UNITED STATES MAGISTRATE JUDGE 18 19 20 21 Borb1464.nop 22 23 24 25 26 27 28