IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 28, 2011
JOSE GUADALUPEVILLANUEVA, PLAINTIFF,
STATE OF CALIFORNIA, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. On July 22, 2010, defendants Kromann, Noriega, Rallos, Traquina and Tran filed a motion for summary judgment.*fn1 On August 19, 2010, plaintiff filed an opposition, which was docketed as an opposition to the July 22, 2010 motion, as well as an opposition to defendant Basi's May 7, 2010 motion for summary judgment. Defendant Basi filed a reply to plaintiff's opposition on August 23, 2010. Defendants Kromann, Noriega, Rallos, Traquina and Tran filed a reply to plaintiff's opposition on August 24, 2010.
However, a close reading of plaintiff's opposition reflects that plaintiff only intended to oppose defendant Basi's motion for summary judgment. The first page of plaintiff's opposition states that plaintiff was opposing "defendants [sic] motion for summary judgment for Dr. A. Basi." (Dkt. No. 74 at 1.) In addition, although the opposition was not filed until August 19, 2010, plaintiff signed his filings on July 25, 2010, and July 26, 2010, only a few days after defendants Kromann, Noriega, Rallos, Traquina and Tran filed their motion for summary judgment on July 22, 2010. Therefore, this court cannot construe plaintiff's August 19, 2010 opposition as an opposition to the motion for summary judgment filed by defendants Kromann, Noriega, Rallos, Traquina and Tran.
However, plaintiff's opposition to the motion for summary judgment filed by defendants Kromann, Noriega, Rallos, Traquina and Tran is long overdue. Because plaintiff filed an opposition to defendant Basi's motion, it is clear plaintiff is aware of his obligation to oppose a motion.
Local Rule 230(l) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." On May 5, 2009, plaintiff was specifically advised of the requirements for filing an opposition to a motion and that failure to oppose such a motion may be deemed a waiver of opposition to the motion.
Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." In the order filed May 5, 2009, plaintiff was also advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed.
Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides: Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.Id.
Plaintiff will be provided one final opportunity in which to file an opposition. Defendants will be provided an opportunity to file a reply. Given the length of time defendants' motion has been pending, however, this court is not inclined to entertain requests for extension of time.
Good cause appearing, IT IS HEREBY ORDERED that, within twenty-one days of the date of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment filed by defendants Kromann, Noriega, Rallos, Traquina and Tran. Failure to file an opposition will be deemed as consent to have the: (a) pending motion granted; (b) action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff's failure to comply with these rules and a court order. Said failure shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Any reply by defendants Kromann, Noriega, Rallos, Traquina and Tran shall be filed seven days after plaintiff files an opposition, if any.