(PC) Barrett v. Ciolli ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTHONY BARRETT, Case No. 1:20-cv-01802-JLT-EPG (PC) 11 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF NON- 12 v. OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITHIN TWENTY-ONE DAYS 13 A. CIOLI, et al., 14 Defendants. 15 16 Plaintiff Anthony Barrett is a federal prisoner proceeding pro se and in forma pauperis in 17 this civil rights action proceeding pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 18 403 U.S. 388 (1971). 19 On November 14, 2022, Defendants filed a motion to dismiss. (ECF No. 68). Defendants 20 served the motion to dismiss on Plaintiff at 69617-061, 505 Wildindigo Run, Columbus, OH, 21 43081.1 (ECF No. 68-3). 22 Plaintiff was required to file an opposition or a statement of non-opposition to the motion 23 within twenty-one days (Local Rule 230(l)), but did not do so. Local Rule 230(l) provides that the 24 failure “to file an opposition or to file a statement of no opposition may be deemed a waiver of 25 any opposition to the granting of the motion and may result in the imposition of sanctions.” 26 27 1 On August 8, 2022, Plaintiff filed a notice of change of address to 505 Wildindigo Run, Columbus, OH. (ECF No. 28 63). 1 “Failure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali v. 2 | Moran, 46 F.3d 52, 53 (9th Cir. 1995). Thus, a Court may dismiss an action for a plaintiffs 3 | failure to oppose a motion to dismiss, where the applicable local rule determines that failure to 4 || Oppose a motion will be deemed a waiver of opposition. See Ghazali, 46 F.3d 52 (dismissal 5 | upheld even where plaintiff contended he did not receive motion to dismiss, where plaintiff had 6 adequate notice, pursuant to Fed. R. Civ. P. 5(b), and time to file opposition). 7 Despite Plaintiff's failure to follow Local Rule 230(1), the Court will give Plaintiff an 8 additional twenty-one days to file an opposition or statement of non-opposition to Defendants’ 9 motion to dismiss. If Plaintiff fails to file his opposition within this period, the Court may deem the failure to oppose the motion to dismiss as a waiver of any opposition to that motion, and may 8 recommend that the motion be granted on that basis. Alternatively, the Court may recommend that this action be dismissed for failure to prosecute and failure to comply with a court order. 2 Accordingly, IT IS HEREBY ORDERED that: 13 1. Within twenty-one days from the date of service of this order, Plaintiff shall file an opposition or statement of non-opposition to Defendants’ motion to dismiss; and 15 2. If Plaintiff fails to comply with this order, the Court may deem the failure to 16 oppose the motion to dismiss as a waiver of any opposition to that motion, and 17 may recommend that the motion be granted on that basis. Alternatively, the Court 18 may recommend that this action be dismissed because of Plaintiffs failure to 19 prosecute and failure to comply with a court order. 20 > IT IS SO ORDERED. 22 | Dated: _ January 11, 2023 [Je hey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28