United States District Court, E.D. California
SCOTT K. RICKS, Plaintiff,
G. LEVINE, et al., Defendants.
SECOND INFORMATIONAL ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING DEFENDANTS' SUMMARY JUDGMENT
MOTION (ECF NO. 49)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Scott K. Ricks (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. This action is
related to Ricks v. Austria, et al.,
1:15-cv-01147-AWI-BAM, and Ricks v. Onyeye, et al.,
1:15-cv-1148-AWI-BAM. This matter was referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 302.
filed a motion for summary judgment on July 7, 2017. (ECF No.
49.) Pursuant to Woods v. Carey, 684 F.3d 934
(9th Cir. 2012), 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 following rights and requirements for opposing the
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 twenty-one (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).
Plaintiff 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.
the alternative, if Plaintiff does not agree with the facts
set forth in Defendants' motion, he may 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.
Should Plaintiff fail 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 of any party 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 or entry of default.