ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A STATEMENT OF UNDISPUTED FACTS AND CONSTRUING IT AS HIS OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT(Doc 84) ORDER DIRECTING DEFENDANTS TO FILE A REPLY, IF ANY, WITHIN FIVE (5) DAYS
Plaintiff Monte Haney ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. The action is proceeding on the First Amended Complaint on Plaintiff's claims for relief under section 1983 against Defendants J.G. Oaks and D. Silva for excessive force; against Defendants R. Botello, M. Rickman, F. Oliver, G. Torres, and T. Cano for denial of exercise; and against Defendants R. Botello, M. Rickman, F. Oliver, G. Torres, and T. Cano for denial of equal protection. (Docs. 28, 30.)
On June 21, 2011, Defendants filed a motion for summary judgment. (Doc. 54.) Discovery disputes existed and Plaintiff was ultimately provided an extension to file an opposition.*fn1 (Doc. 82.)
Instead of filing an opposition, Plaintiff filed a motion for leave to file a statement of undisputed facts, a statement of undisputed facts, and a notice of lodging records which he references as exhibits in support of his statement of undisputed facts. (Docs. 84, 85, 86.) Defendants did not file an opposition/response to Plaintiff's motion to for leave to file the statement of undisputed facts, nor did they respond to either of Plaintiff's accompanying documents.
While Defendants have waived their opportunity to oppose Plaintiff's motion for leave to file a statement of undisputed facts, they are hereby given notice that Plaintiff's statement of undisputed facts and lodged records will be construed has his opposition to their motion for summary judgment and are thus given opportunity to file a reply.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for leave to file a statement of undisputed facts, filed February 7, 2012 (Doc. 84) is GRANTED;
2. Plaintiff's statement of undisputed facts (Doc. 85) and records lodged (Doc. 86) are construed as his opposition to Defendants' motion for summary judgment; and
3. Defendants are directed to file a reply, if any, within five (5) days of the date of service of this order.