United States District Court, E.D. California
SECOND INFORMATIONAL ORDER -- NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DOC. 62) 21 DAY DEADLINE
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
filed a motion for summary judgment for Plaintiff's
failure to exhaust his administrative remedies prior to
filing suit. Pursuant to Woods v. Carey, 684 F.3d
934 (9th Cir. 2012), cert denied __ U.S. ___, 135 S.Ct. 228
(2014), Rand v. Rowland, 154 F.3d 952 (9th Cir.
1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th
Cir. 1988), the Court hereby notifies Plaintiff of the rights
and requirements for opposing the motion.
Unless otherwise ordered, all motions for summary judgment
are briefed pursuant to Local Rule 230(1).
Plaintiff is required to file an opposition or a statement of
non-opposition to Defendants' motion for summary
judgment. Local Rule 230(1). If Plaintiff fails to file
an opposition or a statement of non-opposition to the motion,
this action may be dismissed, with prejudice, for failure to
prosecute. The opposition or statement of non-opposition
must be filed not more than 21 days after the date of service
of the motion. Id.
motion for summary judgment is a request for judgment on some
or all of Plaintiff's claims in favor of Defendants
without trial. Fed.R.Civ.P. 56(a). Defendants= motion sets
forth the facts which they contend are not reasonably subject
to dispute and that entitle them to judgment as a matter of
law. Fed.R.Civ.P. 56(c). This is called the Statement of
Undisputed Facts. Local Rule 260(a).
has the right to oppose a motion for summary judgment. To
oppose the motion, Plaintiff must show proof of his claims.
Plaintiff may agree with the facts set forth in Defendants=
motion, but argue that Defendants are not entitled to
judgment as a matter of law.
alternative, if Plaintiff does not agree with the facts set
forth in Defendants= motion, he must show that Defendants=
facts are disputed in one or more of the following ways: (1)
Plaintiff may rely upon statements made under the penalty of
perjury in the complaint or the opposition if (a)
the complaint or opposition shows that Plaintiff has personal
knowledge of the matters stated and (b) Plaintiff calls to
the Court's attention those parts of the complaint or
opposition upon which Plaintiff relies; (2) Plaintiff may
serve and file declarations setting forth the facts which
Plaintiff believes prove his claims; (3) Plaintiff may rely upon
written records but Plaintiff must prove that the records are
what he claims they are; or (4) Plaintiff may rely upon all or
any part of the transcript of one or more depositions,
answers to interrogatories, or admissions obtained in this
proceeding. If Plaintiff fails to contradict Defendants=
motion with declarations or other evidence, Defendants=
evidence will be taken as truth and final judgment may be
entered without a full trial. Fed.R.Civ.P. 56(e).
opposing Defendants' motion for summary judgment, Local
Rule 260(b) requires Plaintiff to reproduce Defendants'
itemized facts in the Statement of Undisputed Facts and admit
those facts which are undisputed and deny those which are
disputed. If Plaintiff disputes (denies) a fact, Plaintiff
must cite to the evidence used to support that denial (e.g.,
pleading, declaration, deposition, interrogatory answer,
admission, or other document). Local Rule 260(b).
discovery has not yet been opened or if discovery is still
open and Plaintiff is not yet able to present facts to
justify the opposition to the motion, the Court will consider
a request to postpone consideration of Defendants'
motion. Fed.R.Civ.P. 56(d). Any request to postpone
consideration of Defendants' motion for summary judgment
must include the following: (1) a declaration setting forth
the specific facts Plaintiff hopes to elicit from further
discovery, (2) a showing that the facts exist, and (3) a
showing that the facts are essential to opposing the motion
for summary judgment. Blough v. Holland Realty,
Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum
v. City and County of San Francisco, 441 F.3d 1090,
1100-01 (9th Cir. 2006); State of California v.
Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request
to postpone the motion for summary judgment must identify
what information is sought and how it would preclude summary
judgment. Blough, 574 F.3d at 1091 n.5;
Tatum, 441 F.3d at 1100-01; Margolis v.
Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule
Unsigned declarations will be stricken, and declarations not
signed under penalty of perjury have no evidentiary value.
failure to comply with this order, the Federal Rules of Civil
Procedure, or the Local Rules of the Eastern District of
California may result in the imposition of sanctions
including but not limited to dismissal of the action.