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Lacy v. Tyson

October 6, 2010

GARY ANDRE LACY, PLAINTIFF,
v.
H. TYSON, ET AL. DEFENDANTS.



The opinion of the court was delivered by: John M. Roll Chief United States District Judge

AMENDED ORDER

Plaintiff has filed an Amended Complaint under 42 U.S.C. § 1983 alleging civil rights violations. Defendants have filed an Answer to the Amended Complaint. The Court takes the following action in an effort to reach a full adjudication of the Amended Complaint.

IT IS ORDERED:

A. If they so choose, counsel for Defendants shall depose Plaintiff, at Defendants' expense, on or before 1/12/2011.

IT IS FURTHER ORDERED the following deadlines shall govern this action:

A. Parties shall disclose a witness list on or before 2/11/2011. On or before that date, the parties are directed to exchange their complete list of witnesses.

B. All discovery, including depositions of parties (other than the plaintiff), witnesses and experts shall be completed by 3/18/2011. No discovery shall take place after that date without leave of Court upon good cause shown.

C. Dispositive motions shall be filed on or before 4/22/2011.

1. If a party seeks oral argument on a motion, he shall request it at the time the motion or responses are filed. See L.R. 78-230(m).

2. Pursuant to L.R. 78-230, parties may file a motion, response, and reply. No additional briefing on a motion is allowed unless leave of Court is granted. Failure to file a response may be deemed a consent to a granting of the motion. A response must be served and filed within ten (10) days of service on the motion; the moving party has five (5) days from service to serve and file a reply. Rule 56 motions for summary judgment and Rule 12(b)(1) motions to dismiss provide an exception to the above time limits: the time for a response is 45 days and the time for a reply is 20 days. Unless otherwise permitted by the Court, a motion or response, inclusive of supporting memorandum but exclusive of attachments and statement of facts, shall not exceed 17 pages; a reply shall not exceed 11 pages.

3. Any pleading which is submitted with more than one exhibit must be accompanied by a Table of Contents. The exhibits must be indexed with tabs that correspond to the Table of Contents. Absent exigent circumstances, the Court will not consider pleadings which do not conform to these requirements.

4. The Ninth Circuit Court of Appeals requires the Court to provide pro se prisoners with notice of the requirements of Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure. Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Similarly, the Ninth Circuit has required notice be provided when a motion to dismiss has been filed. See Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003).

ACCORDINGLY, the Court NOTIFIES Plaintiff as follows:

a. When a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) or motion for summary judgment pursuant to Fed.R.Civ.P. 56 is filed (e.g., on the grounds that you failed to state a claim, that you did not exhaust the prison administrative remedies available to you, or that there is no material issue of factual dispute), the motion will, if granted, result in the dismissal of your case. When a party you are suing makes a motion to dismiss for failure to exhaust, and that motion is properly supported by declarations (or other sworn testimony) and/or documents, you may not simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answer to interrogatories, or documents, that contradict the facts shown in the defendants' declarations and documents and show that you have in fact exhausted your claims. If you do not submit your own evidence in opposition, the motion to dismiss, if appropriate, may be granted and the case dismissed.

1. The declarations or other sworn testimony setting out your specific facts must be made on personal knowledge, must set forth such facts as would be admissible as evidence, and must affirmatively show that the affiant is competent to testify regarding the matters in the declaration or other sworn testimony.

2. If the Court determines that any of the declarations or other sworn testimony are made in bad faith, the Court may order the party employing the bad faith to pay the other party for costs associated with controverting that testimony, including the other party's attorney's fees.

3. If you do not submit your own evidence in opposition to the motion, the moving party's evidence might be taken as truth and those claims addressed in the motion will be DISMISSED without a trial. IF THAT OCCURS, THERE WILL BE NO TRIAL ON THOSE CLAIMS.

b. YOU SHALL FILE ANY RESPONSE TO A MOTION TO DISMISS OR MOTION FOR SUMMARY JUDGMENT WITHIN FORTY-FIVE (45) DAYS FROM THE DATE THE MOTION IS FILED. If you do not respond to the motion, your failure to respond can be viewed as you agreeing to the Court granting the Motion. See L.R. 78-230(m). IF THAT OCCURS, THOSE CLAIMS ADDRESSED IN THE MOTION TO DISMISS WILL BE DISMISSED AND THERE WILL BE NO TRIAL ...


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