United States District Court, E.D. California
SECOND INFORMATIONAL ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DOC. 34) TWENTY-ONE (21) DAY DEADLINE
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
Wayne Bolton, is a state prisoner proceeding pro se
and in forma pauperis pursuant to 42 U.S.C. §
1983. Defendants filed a motion for summary judgment on May
3, 2018 based on Plaintiff's failure to exhaust his
administrative remedies prior to filing suit. (Doc. 34.)
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 rights
and requirements for opposing the motion.
Unless otherwise ordered, all motions for summary judgment
are briefed in accordance with 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, Plaintiff 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). In 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.
A declaration is a written statement
setting forth facts (1) which are admissible in evidence, (2)
which are based on the personal knowledge of the person
giving the statement, and (3) to which the person giving the
statement is competent to testify. 28 U.S.C. § 1746;
Fed.R.Civ.P. 56(c)(4). A declaration must be dated and signed
under penalty of perjury as follows: “I declare (or
certify, verify or state) under penalty of perjury that ...