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Infinity v. Jo Ellen Felice


July 10, 2012



This action is before the undersigned pursuant to the consent of the parties. See 28 U.S.C. § 636(c); E.D. Cal. L.R. 305. On June 13, 2012, defendant filed a motion to dismiss plaintiff's complaint and/or for summary judgment. Dckt. No. 28. Then, on July 5, 2012, plaintiff filed a request for a sixty day extension of time to respond to the motion. Dckt. No. 29. Plaintiff, who is currently incarcerated and is proceeding pro se, contends that he needs additional time to conduct legal research and respond to the arguments made in the motion. Id.

Plaintiff's request for an extension of time will be granted. Additionally, the court informs plaintiff of the following with respect to opposing a motion for summary judgment under Federal Rule of Civil Procedure 56: Such a motion is a request that the court grant judgment in defendants' favor without trial. A motion for summary judgment will set forth the facts that defendants assert are not reasonably subject to dispute and that entitle them to judgment under applicable law. To oppose a motion for summary judgment, plaintiff must show proof of his claims. To do this, he may rely upon statements made in the complaint under penalty of perjury if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff specifies the parts of the complaint upon which he relies. Plaintiff also may file one or more affidavits or declarations setting forth the facts that plaintiff believes prove his claims, as long as the person who signs it has personal knowledge of the facts stated. Plaintiff may rely on written records, but he must prove they are what he asserts them to be. Plaintiff may rely on all or any part of responses to discovery propounded in this case, i.e, answers to interrogatories, admissions and deposition transcripts. If plaintiff fails to contradict defendants' evidence with counter-affidavits or other admissible evidence, the court may accept defendants' evidence as true and grant the motion. If there is good reason why such facts are not available to plaintiff when he is required to oppose a motion for summary judgment, the court will consider a request to postpone considering the motion. If plaintiff does not file a written opposition to the motion or a request to postpone consideration of it, the court may consider the failure to act as a waiver of opposition to the defendants' motion. If the court grants defendants' motion, whether opposed or unopposed, judgment will be entered for defendants without a trial and the case will be closed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for an extension of time, Dckt. No. 29, is granted.

2. Plaintiff shall file an opposition to the motion to dismiss and/or for summary judgment, or a statement of non-opposition thereto, no later than September 10, 2012.

3. Also on or before September 10, 2012, plaintiff shall file a response to defendant's statement of undisputed facts, as required by Local Rule 260(b).*fn1

4. Failure of plaintiff to file an opposition will be deemed a statement of non-opposition to the motion, and may result in a recommendation that this action be dismissed for lack of prosecution and/or for failure to comply with court orders and this court's Local Rules.*fn2 See Fed. R. Civ. P. 41(b).

5. Defendant may file a reply to plaintiff's opposition on or before September 24, 2012. SO ORDERED.

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