(PC) Jones v. Shelton

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LAVAL JONES, Case No. 1:19-cv-01068-NONE-EPG (PC) Plaintiff, ORDER DIRECTING DEFENDANT TO SERVE PLAINTIFF WITH A COPY OF HIS v. MOTION FOR SUMMARY JUGDMENT

ORDER REQUIRING PLAINTIFF TO FILE WEBER, OPPOSITION OR STATEMENT OF NON- OPPOSITION TO DEFENDANT’S Defendant. MOTION FOR SUMMARY JUDGMENT Laval Jones (“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. On October 19, 2020, Defendant filed a motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies before filing this lawsuit. (ECF No. 21). 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). However, the Court will not impose any sanctions or treat the facts asserted by Defendant as undisputed at this time, in part because it is not clear if Plaintiff received a copy of the motion. The motion was mailed to Plaintiff on October 19, 2020. (ECF No. 21-6). On November 4, 2020, Plaintiff filed a notice of change of address. (ECF No. 27). The notice of change of address is dated October 23, 2020, which is only four days after the motion was mailed to Plaintiff. Therefore, in an abundance of caution, the Court will direct Defendant to serve Plaintiff with a copy of his motion for summary judgment and will grant Plaintiff additional time to respond. Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 1. Defendant has until December 4, 2020, to serve Plaintiff with a copy of his motion for summary judgment (ECF No. 21). 2. Plaintiff has until January 6, 2021, to file and serve an opposition or a statement of non-opposition to Defendant’s motion for summary judgment, or to request additional time to do so.! 3. If Plaintiff files an opposition, Defendant has seven days from the date the opposition is filed in CM/ECF to file and serve a reply to the opposition. 4. 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. Dated: _ November 30, 2020 [Je hey — UNITED STATES MAGISTRATE JUDGE ' Tf Plaintiff wants additional time to respond to the motion, he must file a motion for an extension of time prior to the January 6, 2021 deadline. The motion must include reasons for the extension that establish good cause.