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 The Clerk of the Court was directed to provide plaintiff with a copy of the Local Rules 1

of Court. (See Order filed Jan. 12, 2006, at 5.) The docket reflects that plaintiff was served with

a copy of the Local Rules on January 12, 2006.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN KING,

Plaintiff, No. CIV S-04-2246 LKK DAD P 

vs.

CALIFORNIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants. ORDER TO SHOW CAUSE

 /

Plaintiff is a state prisoner proceeding pro se. Pursuant to the court’s order filed

January 12, 2006, plaintiff’s amended complaint has been served on seven defendants. On April

10, 2006, six defendants filed an answer to the amended complaint, and one defendant filed a

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff

has not responded to defendant Barnes’ motion to dismiss.

The court’s January 12, 2006 order provides that all motions to dismiss and all

motions brought pursuant to Rule 12 “shall be briefed pursuant to Local Rule 78-230(m).” 

(Order filed Jan. 12, 2006, at 3. ) The order further provides that “[f]ailure to oppose such a 1

Case 2:04-cv-02246-ALA Document 26 Filed 05/25/06 Page 1 of 3
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motion timely may be deemed a waiver of opposition to the motion.” Under Local Rule 78-

230(m), opposition to the granting of a motion “shall be served and filed with the Clerk by the

responding party not more than eighteen (18) days, plus three (3) days for mailing or electronic

service, after the date of service of the motion.” Local Rule 78-230(m). Defendants have filed a

declaration of service that reflects mail service of defendant Barnes’ motion on April 10, 2006. 

Plaintiff was required to file any opposition to defendant Barnes’ motion within eighteen days,

plus three for mail service, after April 10, 2006. Pursuant to the mailbox rule applicable to

prisoner filings, plaintiff was required to deliver his opposition to prison officials for mailing on

or before May 1, 2006. Plaintiff’s opposition is more than two weeks overdue.

Plaintiff will be granted eighteen days, plus three for mail service of this order, to

file and serve a declaration under penalty of perjury in which he shows good cause for his failure

to respond to defendant Barnes’ motion as required by the court’s January 12, 2006 order and

Local Rule 78-230(m). Plaintiff’s declaration must be accompanied by opposition or a statement

of non-opposition to defendant Barnes’ motion to dismiss. Plaintiff’s failure to respond to this

order in a timely manner will result in a recommendation that the district judge dismiss plaintiff’s

claim against defendant Barnes with prejudice due to plaintiff’s failure to comply with court

orders and applicable rules. See Local Rule 11-110.

Accordingly, IT IS ORDERED that:

1. Plaintiff shall file and serve, within twenty-one days after the date on which

this order is signed, a declaration under penalty of perjury in which he shows good cause for his

failure to respond to defendant Barnes’ motion to dismiss; plaintiff’s declaration must be

accompanied by opposition or a statement of non-opposition to the motion to dismiss;

2. Plaintiff’s failure to file a timely response to this order will result in a

recommendation that the district judge dismiss plaintiff’s claim against defendant Barnes with

prejudice; and

/////

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3. If plaintiff files opposition to defendant Barnes’ motion to dismiss, defendant

Barnes’ reply shall be filed and served in accordance with Local Rule 78-230(m).

DATED: May 24, 2006.

DAD:13

king2246.osc

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