Hernandez v. Gonzalez
Filing
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ORDER For Plaintiff To File Opposition Or Notice Of Non-Opposition In Response To Defendant's Motion To Dismiss For Failure To Exhaust Remedies (Doc. 17 ), Thirty Day Deadline, signed by Magistrate Judge Gary S. Austin on 11/7/2011. (Opposition due by 12/12/2011)(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FAUSTINO LEON HERNANDEZ,
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1:10-cv-00248-LJO-GSA-PC
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ORDER FOR PLAINTIFF TO FILE
OPPOSITION OR NOTICE OF NONOPPOSITION IN RESPONSE TO
DEFENDANT’S MOTION TO DISMISS FOR
FAILURE TO EXHAUST REMEDIES
(Doc. 17.)
Defendant.
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Plaintiff,
THIRTY DAY DEADLINE
v.
C/O J. GONZALEZ,
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/
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Faustino Leon Hernandez (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on
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February 16, 2010. (Doc. 1.) This action proceeds on the Second Amended Complaint filed by
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Plaintiff on January 31, 2011, against defendant C/O J. Gonzalez (“Defendant”), for use of excessive
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force in violation of the Eighth Amendment. (Doc. 10.)
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On August 1, 2011, Defendant filed a motion to dismiss this action for failure to exhaust
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administrative remedies. (Doc. 17.) Plaintiff has not responded, or requested an extension of time
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to respond, to the motion to dismiss.
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Plaintiff was required to file an opposition or notice of non-opposition to the motion to
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dismiss within twenty-one days. Local Rule 230(l). Local Rule 230(l) provides that the failure to
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oppose a motion "may be deemed a waiver of any opposition to the granting of the motion..." The
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court will deem any failure to oppose Defendant's motion to dismiss as a waiver, and recommend
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that the motion be granted on that basis.
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Failure to follow a district court's local rules is a proper grounds for dismissal. U.S. v.
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Warren, 601 F.2d 471, 474 (9th Cir. 1979). Thus, a court may dismiss an action for plaintiff's failure
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to oppose a motion to dismiss, where the applicable local rule determines that failure to oppose a
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motion will be deemed a waiver of opposition. See Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995),
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cert. denied 516 U.S. 838 (1995) (dismissal upheld even where plaintiff contends he did not receive
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motion to dismiss, where plaintiff had adequate notice, pursuant to Fed. R. Civ. P. 5(b), and time to
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file opposition); cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995); Henry v. Gill Industries,
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Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (motion for summary judgment cannot be granted simply
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as a sanction for a local rules violation, without an appropriate exercise of discretion).
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Accordingly, within thirty days of the date of service of this order, Plaintiff shall file an
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opposition or statement of non-opposition to Defendant’s motion to dismiss for failure to exhaust
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administrative remedies, filed on August 1, 2011. If Plaintiff fails to comply with this order, the
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Court will deem the failure to respond as a waiver, and recommend that the motion be granted on
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that basis.
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IT IS SO ORDERED.
Dated:
6i0kij
November 7, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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