Ochoa v. Von Lintig

Opinion

BARRY ERNEST OCHOA, Case No.: 19cv346-MMA (JLB)

Plaintiff, ORDER GRANTING DEFENDANT v. VON LINTIG’S UNOPPOSED MOTION TO DISMISS

Defendant. [Doc. No. 20]

Plaintiff Barry Ernest Ochoa is a California state prisoner, proceeding pro se in this civil rights action. Plaintiff alleges that Defendant Von Lintig violated his Eighth Amendment right to adequate medical care. See Doc. No. 14. Defendant Von Lintig moves to dismiss Plaintiff’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 20. To date, Plaintiff has not responded to Defendant’s motion and the time in which to do so has expired. See SD CivLR 7.1.e.2. For the reasons set forth below, the Court GRANTS Defendant Von Lintig’s unopposed motion to dismiss. Defendant Von Lintig moves to dismiss Plaintiff’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 20. Defendant Von Lintig properly served Plaintiff with the motion to dismiss at his current address of record, as reflected by the California Department of Rehabilitation and Corrections’ Public Inmate Locator System.! The motion was previously set for hearing on February 3, 2020. As such, Plaintiff's response to the motion was due on or before January 21, 2020. See SD CivLR 7.1.e.2; Fed. R. Civ. P. 6(a)(1)(C). To date, Plaintiff has not submitted a response brief, nor has he requested an extension of time in which to do so. As set forth in this District’s Civil Local Rules, “[iJf an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court.” SD CivLR 7.1.f.3.c. The Ninth Circuit has held a district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not /require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Court has the option of granting Defendant Von Lintig’s motion on the basis of Plaintiffs’ failure to respond, and it chooses to do so. Based on the foregoing, the Court GRANTS Defendant Von Lintig’s motion to /dismiss Plaintiff’s Eighth Amendment claim. Because Von Lintig is the sole defendant, Court DISMISSES this action in its entirety without prejudice. The Court DIRECTS the Clerk of Court to enter judgement accordingly and close the case. DATE: February 11, 2020 Ltd ah Wl = □□ ls HON. MICHAEL M. ANELLO United States District Judge See https://inmatelocator.cdcr.ca.gov/Details.aspx?7ID=AN2773 (last visited 2/11/2020).