(PC) Clark v. Gutierrez ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CHRISTOPHER CHARLES CLARK, Case No. 1:21-cv-01386-JLT-EPG (PC) 11 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE 12 v. OPPOSITION OR STATEMENT OF NON- OPPOSITION TO DEFENDANTS’ 13 MOTION FOR SUMMARY JUDGMENT FIDEL GUTIERREZ, et al., WITHIN THIRTY DAYS 14 Defendants. 15 16 Christopher Charles Clark (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes state law 18 claims. 19 On April 10, 2023, Defendants filed a motion for summary judgment “on the grounds that 20 Plaintiff Clark has failed to exhaust available administrative remedies on his claims as required 21 by the Prison Litigation Reform Act (PLRA) 42 U.S.C. § 1997e(a), and well as applicable 22 California state law, and that the claims are therefore barred and must be dismissed.” (ECF No. 23 33, pgs. 1-2) (footnote omitted). Defendants filed an amended notice and motion on April 13, 24 2023. (ECF No. 39). Plaintiff was required to file an opposition or a statement of non-opposition 25 to the motion within twenty-one days, Local Rule 230(l), but did not do so. 26 Local Rule 230(l) provides that the failure “to file an opposition or to file a statement of 27 no opposition may be deemed a waiver of any opposition to the granting of the motion and may 28 result in the imposition of sanctions.” While a motion for summary judgment cannot be granted 1 | by default, Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013), the Court does have other 2 || options when a party fails to respond. For example, if Plaintiff fails to respond, the Court may 3 | treat the facts asserted by Defendants as “undisputed for purposes of the motion.” Fed. R. Civ. P. 4 | 56(e)(2). Alternatively, if Plaintiff fails to oppose the motion or file a statement of non- 5 || opposition, the Court may recommend that this case be dismissed for failure to prosecute and 6 | failure to comply with a court order. 7 However, the Court will not impose any sanctions or treat the facts asserted by Defendants 8 || as undisputed at this time. Instead, the Court will give Plaintiff one more opportunity to file a 9 | response. 10 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 11 1. Within thirty days from the date of service of this order, Plaintiff shall file an 12 opposition or a statement of non-opposition to Defendants’ motion for summary 13 judgment. 14 2. If Plaintiff fails to comply with this order, in ruling on Defendants’ motion for 15 summary judgment the Court may treat the facts asserted by Defendants in their 16 motion for summary judgment as undisputed. Alternatively, the Court may 17 recommend that this case be dismissed for failure to prosecute and failure to 18 comply with a court order. 19 20 IT IS SO ORDERED. 21 | Dated: _ May 22, 2023 [sf ey — 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28