(PC) Bowcut v. Daram

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD RAY BOWCUT, No. 2:21-cv-00736-DB 12 Plaintiff, 13 v. ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 On November 14, 2023, defendants filed a motion for summary judgment pursuant to 18 Federal Rule of Civil Procedure 56. Plaintiff did not oppose the motion. Plaintiff filed two 19 motions requesting appointment of counsel (ECF Nos. 49, 50) and the undersigned denied those 20 motions. (ECF No. 51.) Plaintiff then filed an appeal. (ECF No. 53.) Plaintiff also filed a 21 motion to proceed in forma pauperis after being sent the bill for fees by the Ninth Circuit. (ECF 22 No. 56.) The Ninth Circuit dismissed plaintiff’s appeal for lack of jurisdiction. (ECF Nos. 57, 23 58.) 24 Local Rule 230(l) provides in part: “Failure of the responding party to file written 25 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 26 the granting of the motion . . . .” Id. On November 14, 2023 plaintiff was advised of the 27 //// 28 //// 1 | requirements for filing an opposition to a motion and that failure to oppose such a motion may be 2 | deemed a waiver of opposition to the motion. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 3 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 4 Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for 5 | imposition of any and all sanctions authorized by statute or Rule or within the inherent power of 6 | the Court.” Id. 7 Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides: 8 Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move 9 to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and 10 any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 11 19--operates as an adjudication on the merits. 12 | Id. 13 Good cause appearing, IT IS HEREBY ORDERED that: 14 1) Within thirty days from the date of this order, plaintiff shall file an opposition, if any, to 15 the motion for summary judgment. 16 2) Failure to file an opposition will be deemed as consent to have the: (a) action dismissed 17 for lack of prosecution; and (b) action dismissed based on plaintiff's failure to comply 18 with these rules and a court order. Said failure shall result in a recommendation that this 19 action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 20 3) Plaintiff's motion to proceed in forma pauperis (ECF No. 56) is denied as moot. 21 | Dated: April 18, 2024 22 23 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 DB16 26 DB/Prisoner Inbox/Civil Rights/R/bowc736nooppo 27 28