(PC) Brown v. Rodriguez ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARK ANTHONY BROWN, Case No. 1:20-cv-00661-NONE-EPG (PC) 10 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF NON- 11 v. OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 12 A. JARAMILLO, et al., (ECF Nos. 75, 80) 13 Defendants. 14 15 Plaintiff Mark Anthony Brown is a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 23, 2021, Defendants 17 filed a motion for summary judgment arguing that Plaintiff failed to exhaust his administrative 18 remedies before filing this lawsuit. (ECF No. 75). On October 4, 2021, Plaintiff filed an ex parte 19 motion for enlargement of time to file his opposition to the motion for summary judgment. (ECF 20 No. 79). The Court granted the motion, ordering “Plaintiff’s opposition to Defendants’ motion for 21 summary judgment on the issue of exhaustion [to] be filed no later than December 6, 2021.” 22 (ECF No. 80, p. 2). To date, Plaintiff has not filed an opposition to the motion for summary 23 judgment, and the time for him to do so has expired. 24 Local Rule 230(l) provides that the failure “to file an opposition or to file a statement of 25 no opposition may be deemed a waiver of any opposition to the granting of the motion and may 26 result in the imposition of sanctions.” While a motion for summary judgment cannot be granted 27 by default, Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013), the Court does have 28 other options when a party fails to respond. For example, if Plaintiff fails to respond, the Court 1 | may treat the facts asserted by Defendants as “undisputed for purposes of the motion.” Fed. R. 2 | Civ. P. 56(e)(2). 3 However, given Plaintiff's pro se status, the Court will not impose any sanctions or treat 4 | the facts asserted by Defendants as undisputed at this time. Rather, to ensure that Plaintiff has had 5 | a sufficient opportunity to respond, the Court will grant Plaintiff one final opportunity to respond. 6 | Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiff has until December 21, 2021, to file and serve an opposition or a 8 | statement of non-opposition to Defendants’ motion for summary judgment, or to request 9 | additional time to do so. 10 2. If Plaintiff files an opposition, Defendants have seven days from the date the 11 | opposition is filed in CM/ECF to file and serve a reply to the opposition. 12 3. If Plaintiff fails to comply with this order, in ruling on Defendants’ motion for 13 | summary judgment the Court may treat the facts asserted by Defendants in the motion for 14 | summary judgment as undisputed. Alternatively, the Court may recommend that this case be 15 | dismissed for failure to prosecute and failure to comply with a court order. 16 7 IT IS SO ORDERED. 18 Dated: _ December 7, 2021 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28