(PC) Jones v. Shelton ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 LAVAL JONES, Case No. 1:19-cv-01068-NONE-EPG (PC) 11 Plaintiff, ORDER DIRECTING DEFENDANT TO SERVE PLAINTIFF WITH A COPY OF HIS 12 v. MOTION FOR SUMMARY JUGDMENT 13 ORDER REQUIRING PLAINTIFF TO FILE WEBER, OPPOSITION OR STATEMENT OF NON- 14 OPPOSITION TO DEFENDANT’S Defendant. MOTION FOR SUMMARY JUDGMENT 15 16 Laval Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action filed pursuant to 42 U.S.C. § 1983. On October 19, 2020, Defendant filed a 18 motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative 19 remedies before filing this lawsuit. (ECF No. 21). Plaintiff was required to file an opposition or 20 a statement of non-opposition to the motion within twenty-one days, Local Rule 230(l), but did 21 not do so. 22 Local Rule 230(l) provides that the failure “to file an opposition or to file a statement of 23 no opposition may be deemed a waiver of any opposition to the granting of the motion and may 24 result in the imposition of sanctions.” While a motion for summary judgment cannot be granted 25 by default, Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013), the Court does have other 26 options when a party fails to respond. For example, if Plaintiff fails to respond, the Court may 27 treat the facts asserted by Defendant as “undisputed for purposes of the motion.” Fed. R. Civ. P. 28 56(e)(2). 1 However, the Court will not impose any sanctions or treat the facts asserted by Defendant 2 | as undisputed at this time, in part because it is not clear if Plaintiff received a copy of the motion. 3 | The motion was mailed to Plaintiff on October 19, 2020. (ECF No. 21-6). On November 4, 4 | 2020, Plaintiff filed a notice of change of address. (ECF No. 27). The notice of change of 5 || address is dated October 23, 2020, which is only four days after the motion was mailed to 6 | Plaintiff. Therefore, in an abundance of caution, the Court will direct Defendant to serve Plaintiff 7 | with a copy of his motion for summary judgment and will grant Plaintiff additional time to 8 || respond. 9 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 10 1. Defendant has until December 4, 2020, to serve Plaintiff with a copy of his motion 11 for summary judgment (ECF No. 21). 12 2. Plaintiff has until January 6, 2021, to file and serve an opposition or a statement of 13 non-opposition to Defendant’s motion for summary judgment, or to request 14 additional time to do so.! 15 3. If Plaintiff files an opposition, Defendant has seven days from the date the 16 opposition is filed in CM/ECF to file and serve a reply to the opposition. 17 4. If Plaintiff fails to comply with this order, in ruling on Defendant’s motion for 18 summary judgment the Court may treat the facts asserted by Defendant in his 19 motion for summary judgment as undisputed. Alternatively, the Court may 20 recommend that this case be dismissed for failure to prosecute and failure to 21 comply with a court order. 22 73 IT IS SO ORDERED. 24 | Dated: _ November 30, 2020 [Je hey — 25 UNITED STATES MAGISTRATE JUDGE 26 27 ' Tf Plaintiff wants additional time to respond to the motion, he must file a motion for an extension of time 28 prior to the January 6, 2021 deadline. The motion must include reasons for the extension that establish good cause. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28