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