Opinion

(PC) Howard v. Brown, Jr.

Court
District Court, E.D. California
Filed
Aug 26, 2021
Cited by
0 cases
Authority
More cited than 17.7%

The opinion

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC)

11 Plaintiff,

ORDER REQUIRING PLAINTIFF TO FILE

12 v. OPPOSITION OR STATEMENT OF NON-

OPPOSITION TO DEFENDANTS’

13 MOTION FOR SUMMARY JUDGMENT

SGT. ENCINAS, et al.,

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Defendants.

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16 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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

18 July 12, 2021, Defendants filed a motion for summary judgment. (ECF No. 61). Plaintiff was

19 required to file an opposition or a statement of non-opposition to the motion within twenty-one

20 days, Local Rule 230(l), but did not do so.

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

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

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

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

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

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

27 56(e)(2). Alternatively, if Plaintiff fails to oppose the motion or file a statement of non-

28 opposition, the Court may recommend that this case be dismissed for failure to prosecute and

1 | failure to comply with a court order.

2 However, the Court will not impose any sanctions or treat the facts asserted by Defendants

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

4 || response.

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

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

7 opposition or a statement of non-opposition to Defendants’ motion for summary

8 judgment.

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

10 summary judgment the Court may treat the facts asserted by Defendants in their

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

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

13 comply with a court order.

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15 IT IS SO ORDERED.

16! Dated: _ August 26, 2021 [Jee Sy □

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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