(PC) Evans v. Struve ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID EVANS, No. 2: 19-cv-1376 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 D. STRUVE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. In the August 2, 2019 order directing service of defendants, the undersigned 19 found that plaintiff’s complaint stated the following potentially colorable claims for relief: 20 1) defendant Struve used excessive force against plaintiff on May 23, 2018; 2) defendants 21 Gonzalez, Dingfelder, Richardson, Calderon, Valice, Sidebotham and McCarval witnessed the 22 excessive force and failed to intervene; and 3) all defendants later falsely alleged, apparently in 23 reports prepared after the excessive force incident, that plaintiff resisted defendant Struve.1 (ECF 24 No. 6 at 1-2.) 25 1 In the complaint, plaintiff alleges, in relevant part, “Defendants D. Gonzales, L. Dingfelder, S. 26 Richardson, D. Calderon, Valice, Sidebotham and C. McCarval were all in the area of the events 27 and witnessed the brutality that Struve had imposed on the plaintiff and, simply observed his conduct and made attempts to cover-up for Struves unlawful actions by alleging plaintiff had 28 resisted...” (ECF No. 1 at 11.) 1 On October 2, 2020, defendants filed a motion for partial summary judgment. (ECF No. 2 | 57.) Defendants move for summary judgment as to plaintiff’s claim that defendants Gonzales, 3 | Dingfelder, Richardson, Calderon, Valice, Sidebotham and McCarval violated the Eighth 4 | Amendment when they allegedly failed to intervene when defendant Struve used excessive force 5 | against plaintiff. Plaintiff has not filed an opposition to defendants’ motion for partial summary 6 | judgment. 7 Local Rule 230(1) provides in part: “Failure of the responding party to file written 8 || opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 9 | the granting of the motion ....” Id. On March 16, 2020 and October 2, 2020, plaintiff was 10 | advised of the requirements for filing an opposition to a motion and that failure to oppose such a 11 | motion may be deemed a waiver of opposition to the motion. See Rand v. Rowland, 154 F.3d 12 | 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 13 | 1988). 14 Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for 15 || imposition of any and all sanctions authorized by statute or Rule or within the inherent power of 16 || the Court.” Id. 17 Good cause appearing, IT IS HEREBY ORDERED that, within thirty days from the date 18 | of this order, plaintiff shall file an opposition, if any, to defendants’ motion for partial summary 19 | judgment. If plaintiff fails to file an opposition, the undersigned will recommend dismissal of 20 | plaintiffs claim alleging that Gonzales, Dingfelder, Richardson, Calderon, Valice, Sidebotham 21 | and McCarval violated the Eighth Amendment by failing to intervene for lack of prosecution. 22 | Dated: November 13, 2020 3 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 Evans1376.nop 26 27 28