United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 23)
NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TWENTY-ONE (21)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding in forma pauperis and with
counsel in this civil rights action brought pursuant to 42
U.S.C. § 1983. The action proceeds on Eighth Amendment
claims against CO Jane Doe and CO Benson; a conspiracy claim
against CO Jane Doe and CO Benson; and a First Amendment
retaliation claim against CO Davis. (ECF No. 10.)
have filed a motion for summary judgment on the ground
Plaintiff failed to exhaust administrative remedies. (ECF No.
23.) Plaintiff has not filed an opposition or statement of
non-opposition to Defendants' motion, and the time for
doing so has passed. Local Rule 230(l).
light of Plaintiff's pro se and incarcerated status, the
Court will give Plaintiff one further opportunity to respond
to the motions: Plaintiff must file an opposition or a
statement of non-opposition to Defendants' motion for
summary judgment within twenty-one (21) days from the date of
service of this Order.
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 motion:
Unless otherwise ordered, all motions for summary judgment
are briefed pursuant to Local Rule 230(l).
Plaintiff is required to file an opposition or a statement of
non-opposition to Defendants' motion for summary
judgment. Local Rule 230(l). If Plaintiff fails to
file an opposition or a statement of non-opposition to the
motions, this action may be dismissed, with prejudice, for
failure to prosecute. The opposition or statement of
non-opposition must be filed not more twenty one (21) days
from the date of service of this order. Id.
motion for summary judgment is a request for judgment without
trial, and in favor of Defendants, on some or all of
Plaintiff's claims. Fed.R.Civ.P. 56(a). Defendants'
motion sets forth the facts which he contends 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 the 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. In 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.
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 motions 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.
on the foregoing, Plaintiff is HEREBY ORDERED to file an
opposition or statement of non-opposition to Defendants'
motion for summary judgment within twenty-one (21) days of
the service of this order. If Plaintiff fails to file an
opposition or statement of non-opposition within twenty-one
days, the Court will recommend ...