(PC) Robertson v. California Department of State Hospitals - Sacramento ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 RANDY DAVID RAY ROBERTSON, Case No. 1:23-cv-00912-ADA-EPG (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF NON- 13 v. OPPOSITION DEFENDANTS’ MOTION TO DISMISS WITHIN TWENTY-ONE 14 DAYS CALIFORNIA DEPARTMENT OF STATE 15 HOSPITALS-SACRAMENTO, et al., 16 Defendants. 17 Randy David Ray Robertson (“Plaintiff”), who at the time of filing the complaint was 18 civilly committed to the Atascadero State Hospital (“ASH”)1, proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On October 20, 2023, Defendants filed a motion to dismiss. (ECF No. 20). Defendants 21 served the motion to dismiss on Plaintiff at Contra Costa CONREP, where Plaintiff is now 22 housed. (ECF No. 20-1, p. 28; ECF No. 19). 23 On October 23, 2023, the Court issued an order vacating the hearing on the motion.2 (ECF 24 1 Plaintiff’s complaint states that he is “currently confined and being treated at DSH-Atascadero” pursuant 25 to California Penal Code Section 1026.” (ECF No. 1, pp. 2-3). California Penal Code § 1026 provides for the civil commitment of individuals who have been found not guilty by reason of insanity to the State 26 Department of State Hospitals. Cal. Penal Code § 1026(a). On October 13, 2023, Plaintiff filed a notice of change of address. (ECF No. 19). 27 2 The Court’s order cited Local Rule 230(l), which applies to motions filed in actions “wherein one party is incarcerated and proceeding in properia persona [pro se],” as the basis for vacating the hearing. As 28 (continued…) 1 No. 24). The Court also set a briefing schedule on the motion. (Id.) Plaintiff was required to file 2 an opposition to the motion by no later than November 13, 2023, but did not do so. Local Rule 3 230(c) provides that “[a] failure to file a timely opposition may also be construed by the Court as 4 a non-opposition to the motion.” 5 “Failure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali v. 6 Moran, 46 F.3d 52, 53 (9th Cir. 1995). Thus, a Court may dismiss an action for a 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, 46 F.3d 52 (dismissal 9 upheld even where plaintiff contended he did not receive motion to dismiss, where plaintiff had 10 adequate notice, pursuant to Fed. R. Civ. P. 5(b), and time to file opposition); cf. Heinemann v. 11 Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (holding that a motion for summary judgment 12 cannot be granted based on a failure to file opposition, regardless of any local rule to the 13 contrary). 14 Despite Plaintiff’s failure to file a timely opposition, the Court will give Plaintiff an 15 additional twenty-one days to file an opposition or statement of non-opposition to Defendants’ 16 motion to dismiss. If Plaintiff fails to file his opposition within this period, the Court may 17 construe the failure to oppose the motion to dismiss as a waiver of any opposition to that motion, 18 and may recommend that the motion be granted on that basis. See Wystrach v. Chiachurski, 267 19 F.App’x 6060, 609 (9th Cir. 2008) (explaining that the holding in Ghazali “refused to extend to 20 motions to dismiss the requirement that a district court examine the merits of an unopposed 21 motion for summary judgment before summarily granting it pursuant to a local rule”). 22 Alternatively, the Court may recommend that this action be dismissed for failure to prosecute and 23 failure to comply with a court order. 24 // 25 // 26 (…continued) 27 Plaintiff is not incarcerated, Local Rule 230(l) is inapplicable. However, the Court also has authority to adjudicate a motion upon the record and briefs on file pursuant to Local Rule 230(g). 28 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Within twenty-one days from the date of service of this order, Plaintiff shall file an 3 opposition or statement of non-opposition to Defendants’ motion to dismiss; and 4 2. If Plaintiff fails to comply with this order, the Court may construe the failure to 5 oppose the motion to dismiss as waiver of any opposition to that motion, and may 6 recommend that the motion be granted on that basis. Alternatively, the Court may 7 recommend that this action be dismissed because of Plaintiff’s failure to prosecute 8 and failure to comply with a court order. 9 10 IT IS SO ORDERED. 11 | Dated: _November 27, 2023 [sf ey 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28