(PC) Thornberry v. Tate ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 DANIEL LEE THORNBERRY, Case No. 1:19-cv-00825-AWI-EPG (PC) 11 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE 12 v. OPPOSITION OR STATEMENT OF NON- OPPOSITION TO DEFENDANT’S 13 MOTION FOR SUMMARY JUDGMENT HAROLD TATE, 14 Defendant. 15 16 Daniel Lee Thornberry (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes a state law 18 claim. On October 8, 2021, Defendant filed a motion for summary judgment. (ECF No. 42). 19 Plaintiff was required to file an opposition or a statement of non-opposition to the motion within 20 twenty-one days, Local Rule 230(l), but did not do so. 21 Local Rule 230(l) provides that the failure “to file an opposition or to file a statement of 22 no opposition may be deemed a waiver of any opposition to the granting of the motion and may 23 result in the imposition of sanctions.” While a motion for summary judgment cannot be granted 24 by default, Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013), the Court does have other 25 options when a party fails to respond. For example, if Plaintiff fails to respond, the Court may 26 treat the facts asserted by Defendant as “undisputed for purposes of the motion.” Fed. R. Civ. P. 27 56(e)(2). Alternatively, if Plaintiff fails to oppose the motion or file a statement of non- 28 opposition, the Court may recommend that this case be dismissed for failure to prosecute and 1 | failure to comply with a court order. 2 However, the Court will not impose any sanctions or treat the facts asserted by Defendant 3 | as undisputed at this time. Instead, the Court will give Plaintiff one more opportunity to file a 4 || response. 5 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 6 1. Within thirty days from the date of service of this order, Plaintiff shall file an 7 opposition or a statement of non-opposition to Defendant’s motion for summary 8 judgment. 9 2. If Plaintiff fails to comply with this order, in ruling on Defendant’s motion for 10 summary judgment the Court may treat the facts asserted by Defendant in his 11 motion for summary judgment as undisputed. Alternatively, the Court may 12 recommend that this case be dismissed for failure to prosecute and failure to 13 comply with a court order. 14 15 IT IS SO ORDERED. 16 | Dated: __ November 18, 2021 [Jee Sy □ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28