Billups v. Lomeli

Filing 56

ORDER, signed by District Judge David C. Bury on 3/26/2010. It is ORDERED that Plaintiff must file a response to Defendant's Motion for Summary Judgment (Doc. No. 54 ) in accordance with this Order on or before April 30, 2010. Def endant must file a reply on or before May 21, 2010. It is Further ORDERED that Defendant must file a response to Plaintiff's Motion for Summary Judgment (Doc. No. 51 ) on or before April 30, 2010 and Plaintiff must file a reply on or before May 21, 2010. ( Reply due by 5/21/2010, Response due by 4/30/2010) (Scrivner, E)

1 2 3 4 5 6 7 Derrick Lee Billups, 8 9 10 11 12 13
Defendant has moved for summary judgment as to some or all of ) ) CV-06-1014-DCB P Plaintiff, ) ) vs. ) ) ORDER Sergeant Lomeli, ) ) Defendants. ) _____________________________________ ) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

14 Plaintiff's claims. Pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th 15 Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), Plaintiff 16 is advised of the following requirements for opposing a motion for summary 17 judgment made by Defendant pursuant to Rule 56 of the Federal Rules of 18 Civil Procedure.
Such a motion is a request for an order for judgment on

19 some or all of Plaintiff's claims in favor of defendants without trial. 20 See Rule 56(b).
Defendant's motion will set forth the facts which

21 Defendant contends are not reasonably subject to dispute and that entitle 22 Defendant to judgment as a matter of law. 23
See Rule 56(c). To

Plaintiff has the right to oppose a motion for summary judgment.

24 oppose the motion, Plaintiff must show proof of his or her claims. 25 Plaintiff may agree with the facts set forth in Defendant's motion but 26 argue that Defendant is not entitled to judgment as a matter of law. 27 Plaintiff may show Defendant's facts are disputed in one or more of the 28
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1 following ways: (1)

Plaintiff may rely upon statements made under the

2 penalty of perjury in the complaint if the complaint shows that Plaintiff 3 has personal knowledge of the matters stated and if Plaintiff calls to the 4 court's attention those parts of the complaint upon which Plaintiff 5 relies; (2) Plaintiff may also serve and file affidavits or declarations1 6 setting forth the facts which plaintiff believes prove Plaintiff's claims 7 (the persons who sign the affidavit or declaration must have personal 8 knowledge of the facts stated); (3) Plaintiff may also rely upon written 9 records but Plaintiff must prove that the records are what Plaintiff 10 claims they are2 ;
(4) Plaintiff may also rely upon all or any part of

11 the transcript of one or more depositions, answers to interrogatories, or 12 admissions obtained in this proceeding.
Should Plaintiff fail to

13 contradict Defendant's motion with affidavits, declarations, or other 14 evidence, Defendant's evidence will be taken as truth, and final judgment 15 may be entered without a full trial. See Rule 56(e). Plaintiff's waiver 16 of opposition to Defendant's motion may result in the entry of summary 17 judgment
against Plaintiff. A motion supported by affidavits or

18 declarations that are unsigned will be stricken. The failure of any party 19 to comply with this order, the Federal Rules of Civil Procedure, or the 20 21 22 23 24 25 26 27 28
2 An affidavit is a written declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An unsworn declaration has the same effect as an affidavit, provided that it is dated and signed under penalty of perjury, as follows: "I declare under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746. Affidavits and declarations must be made on personal knowledge and must set forth facts as would be admissible in evidence. See Rule 56(e). Sworn or certified copies of all papers referred to in an affidavit must be attached to the affidavit and served on the opposing party. Rule 56(e).
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1 Local Rules of Court, may result in the imposition of sanctions including, 2 but not limited to, dismissal of the action or entry of default. 3 4
Accordingly, IT IS ORDERED that Plaintiff must file a response to Defendant's

5 Motion for Summary Judgment (Doc. No. 54) in accordance with this Order 6 on or before April 30, 2010. Defendant must file a reply on or before May 7 21, 2010. 8
IT IS FURTHER ORDERED that Defendant must file a response to

9 Plaintiff's Motion for Summary Judgment (Doc. No. 51) on or before April 10 30, 2010 and Plaintiff must file a reply on or before May 21, 2010. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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D A T E D this 26th day of March, 2010.