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Sterr v. Baptista

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 28, 2009

MARC A. STERR, PLAINTIFF(S),
v.
D. BAPTISTA, ET AL, DEFENDANT(S).

The opinion of the court was delivered by: David O. Carter United States District Judge Sitting by Designation

ORDER

Plaintiff Marc Sterr ("Plaintiff") is a prisoner proceeding pro se in a civil rights action. Plaintiff is currently incarcerated at the Mule Creek State Prison in Ione, California. On July 22, 2009, Plaintiff filed a Reply to Defendants' Response to Plaintiff's Motion for Temporary Restraining Order. Plaintiff argues that the Court should grant Plaintiff's Motion for Temporary Restraining Order because, pursuant to Local Rule 78-230(m), "[f]ailure to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions."

On November 13, 2008, Magistrate Judge Craig M. Kellison issued an order informing the parties of which motions they must oppose with briefing. Specifically, "Unless otherwise ordered, all motions to dismiss, motions for summary judgment, motions concerning discovery, motions pursuant to Rule 7, 11, 12, 15, 41, 55, 56, 59, and 60 of the Federal Rules of Civil Procedure, and motions shall be briefed pursuant to Local Rule 78-230(m), and failure to oppose such a motion timely may be deemed a waiver of opposition to the motion; opposition to all other motions need be filed only as directed by the court." Pursuant to this order, no written opposition is required on a motion for a temporary restraining order and the local rule does not apply. Furthermore, Plaintiff's Motion for Temporary Restraining Order was ruled on the merits and not from a default position. Consequently, Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Temporary Restraining Order does not warrant a reconsideration of this Court's denial of Plaintiff's Motion.

20090728

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