(PC) Chavez v. Doe 1 ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERTO CHAVEZ, 1:18-cv-01534 AWI-GSA-PC 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF 13 vs. NON-OPPOSITION TO MOTION TO DISMISS FILED BY DEFENDANT 14 J. DOE #1, et al., SALINAS (ECF No. 50.) 15 Defendants. THIRTY-DAY DEADLINE 16 17 18 Plaintiff Gilberto Chavez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with 20 Plaintiff’s Second Amended Complaint, filed on February 20, 2020, against defendant Celina 21 Salinas (“Defendant”) for acting with deliberate indifference in violation of the Eighth 22 Amendment.1 (ECF No. 26.) 23 On April 22, 2021, Defendant filed a motion to dismiss the Second Amended Complaint. 24 (ECF No. 50.) Plaintiff was required to file an opposition or a statement of non-opposition to the 25 motion within twenty-one days, but has not done so. Local Rule 230(l). 26 27 1 All other claims and defendants were dismissed from this action by the court on December 12, 28 2020. (ECF No. 41.) 1 Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver 2 of any opposition to the granting of the motion . . .” The court may deem any failure to oppose 3 Defendant’s motion to dismiss as a waiver, and recommend that the motion be granted on that 4 basis. 5 Failure to follow a district court’s local rules is a proper grounds for dismissal. U.S. v. 6 Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for the plaintiff’s 7 failure to oppose a motion to dismiss, where the applicable local rule determines that failure to 8 oppose a motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th 9 Cir. 1995), cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he 10 did not receive motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ. 11 P. 5(b), and time to file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995); 12 Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993). The court may also dismiss 13 this case for Plaintiff’s failure to comply with the court’s order. See Local Rule 110; Pagtalunan 14 v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 15 Plaintiff shall be ordered to file an opposition, or statement of non-opposition, to 16 Defendant’s motion to dismiss within thirty days. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Within thirty days of the date of service of this order, Plaintiff shall file an 19 opposition or statement of non-opposition to the motion to dismiss filed by 20 Defendant Salinas on April 22, 2021; and 21 2. Plaintiff’s failure to comply with this order will result in a recommendation that 22 this case be dismissed. 23 IT IS SO ORDERED. 24 25 Dated: September 21, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28