(PC) Thornberry v. Tate

Filing 43

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendant's Motion for Summary Judgment, signed by Magistrate Judge Erica P. Grosjean on 11/18/2021. Thirty-Day Deadline. (Maldonado, C)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANIEL LEE THORNBERRY,

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Case No. 1:19-cv-00825-AWI-EPG (PC)
Plaintiff,
ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

v.

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HAROLD TATE,
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Defendant.
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Daniel Lee Thornberry (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes a state law

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claim. On October 8, 2021, Defendant filed a motion for summary judgment. (ECF No. 42).

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Plaintiff was required to file an opposition or a statement of non-opposition to the motion within

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twenty-one days, Local Rule 230(l), but did not do so.

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Local Rule 230(l) provides that the failure “to file an opposition or to file a statement of

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no opposition may be deemed a waiver of any opposition to the granting of the motion and may

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result in the imposition of sanctions.” While a motion for summary judgment cannot be granted

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by default, Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013), the Court does have other

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options when a party fails to respond. For example, if Plaintiff fails to respond, the Court may

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treat the facts asserted by Defendant as “undisputed for purposes of the motion.” Fed. R. Civ. P.

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56(e)(2). Alternatively, if Plaintiff fails to oppose the motion or file a statement of non-

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opposition, the Court may recommend that this case be dismissed for failure to prosecute and
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failure to comply with a court order.
However, the Court will not impose any sanctions or treat the facts asserted by Defendant

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as undisputed at this time. Instead, the Court will give Plaintiff one more opportunity to file a

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response.

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1. Within thirty days from the date of service of this order, Plaintiff shall file an

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opposition or a statement of non-opposition to Defendant’s motion for summary

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judgment.

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2. If Plaintiff fails to comply with this order, in ruling on Defendant’s motion for

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summary judgment the Court may treat the facts asserted by Defendant in his

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motion for summary judgment as undisputed. Alternatively, the Court may

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recommend that this case be dismissed for failure to prosecute and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

November 18, 2021

/s/
UNITED STATES MAGISTRATE JUDGE

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