(PC) Brown v. Rodriguez et al

Filing 85

ORDER Requiring Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' 75 Motion for Summary Judgment signed by Magistrate Judge Erica P. Grosjean on 12/07/2021. Filing Deadline: 12/21/2021.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK ANTHONY BROWN,

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Plaintiff,
v.

Case No. 1:20-cv-00661-NONE-EPG (PC)
ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

A. JARAMILLO, et al.,
(ECF Nos. 75, 80)
Defendants.

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Plaintiff Mark Anthony Brown is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 23, 2021, Defendants

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filed a motion for summary judgment arguing that Plaintiff failed to exhaust his administrative

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remedies before filing this lawsuit. (ECF No. 75). On October 4, 2021, Plaintiff filed an ex parte

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motion for enlargement of time to file his opposition to the motion for summary judgment. (ECF

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No. 79). The Court granted the motion, ordering “Plaintiff’s opposition to Defendants’ motion for

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summary judgment on the issue of exhaustion [to] be filed no later than December 6, 2021.”

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(ECF No. 80, p. 2). To date, Plaintiff has not filed an opposition to the motion for summary

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judgment, and the time for him to do so has expired.

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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

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other options when a party fails to respond. For example, if Plaintiff fails to respond, the Court
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may treat the facts asserted by Defendants as “undisputed for purposes of the motion.” Fed. R.

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Civ. P. 56(e)(2).

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However, given Plaintiff’s pro se status, the Court will not impose any sanctions or treat

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the facts asserted by Defendants as undisputed at this time. Rather, to ensure that Plaintiff has had

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a sufficient opportunity to respond, the Court will grant Plaintiff one final opportunity to respond.

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

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1.

Plaintiff has until December 21, 2021, to file and serve an opposition or a

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statement of non-opposition to Defendants’ motion for summary judgment, or to request

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additional time to do so.

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2.

If Plaintiff files an opposition, Defendants have seven days from the date the

opposition is filed in CM/ECF to file and serve a reply to the opposition.
3.

If Plaintiff fails to comply with this order, in ruling on Defendants’ motion for

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summary judgment the Court may treat the facts asserted by Defendants in the motion for

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summary judgment as undisputed. Alternatively, the Court may recommend that this case be

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dismissed for failure to prosecute and failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

December 7, 2021

/s/
UNITED STATES MAGISTRATE JUDGE

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