Quiroz v. California Department of Corrections and Rehabilitation, et al

Filing 32

ORDER GRANTING Defendant LEAVE to submit Amended Delcarations in support of 26 MOTION for SUMMARY JUDGMENT, signed by Magistrate Judge Dennis L. Beck on 7/19/2010. (Amended Declarations due by 8/6/2010.)(Marrujo, C)

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(PC) Quiroz v. California Department of Corrections and Rehabilitation, et al Doc. 32 1 2 3 4 5 EASTERN DISTRICT OF CALIFORNIA 6 7 CARLOS QUIROZ, 8 9 v. (ECF NO. 26) 10 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 11 et al., 12 13 14 Plaintiff Carlos Quiroz ("Plaintiff") is a prisoner in the custody of the California Defendants. / RESPONSE DUE WITHIN FOURTEEN (14) DAYS Plaintiff, CASE NO. 1:06-CV-01426-OWW-DLB PC ORDER GRANTING DEFENDANT LEAVE TO SUBMIT AMENDED DECLARATIONS UNITED STATES DISTRICT COURT 15 Department of Corrections and Rehabilitation, proceeding pro se in this civil rights action 16 pursuant to 42 U.S.C. 1983. This action is proceeding against Defendants Mallika Attygalla, 17 Chyi Shen, Shu Pin Wu, Perlita McGuinness, and Derral G. Adams for deliberate indifference to 18 a serious medical need in violation of the Eighth Amendment. On November 19, 2009, 19 Defendants filed a motion for summary judgment. (Defs.' Mot. Summ. J., ECF No. 26.) 20 Defendants' motion for summary judgment relies almost entirely upon declarations submitted by 21 doctor David B. Kaye, doctor J. Bradley Taylor, litigation coordinator Johanna Cordova, defense 22 counsel Catherine W. Guess, and Defendants. (Defs.' Mot. Summ. J, Ex. 1, David B. Kaye 23 Decl.; Ex. 2, J. Bradley Taylor Decl.; Ex. 3, Derral. G. Adams Decl.; Ex. 5, Mallika Attygalla 24 Decl.; Ex. 6, Chyi Shen Decl.; Ex. 7, Shu-Pin Wu Decl.; Ex. 8, Perlita McGuinness Decl.; Ex. 9, 25 Johanna Cordova Decl.; Ex. 9, Catherine W. Guess Decl.)1 26 27 28 Defendants also cite to a transcript of Plaintiff's deposition, for the purpose of contending that Plaintiff is s u in g Defendant Adams in his official capacity only. (Defs.' Statement of Undisputed Facts 14; Ex. 4, Pl.'s Dep., d a te d February 26, 2009.) Defendants fail to submit anything that indicates Plaintiff was duly sworn and that the d e p o s itio n accurately reflects Plaintiff's testimony. See Fed. R. Civ. P. 30(f). Thus, the deposition cannot be 1 1 Dockets.Justia.com 1 None of these declarations were verified pursuant to 28 U.S.C. 1746. Section 1746 2 provides that an unsworn declaration may be considered as evidence if it "is subscribed by [the 3 declarant], as true under penalty of perjury, and dated, in substantially the following form . . . (2) 4 If executed within the United States . . . : `I declare (or certify, verify, or state) under penalty of 5 perjury that the foregoing is true and correct. Executed on (date). (Signature)'." An 6 examination of the declarations indicates that none were verified under penalty of perjury 7 pursuant to 1746.. 8 The Court will grant Defendants the opportunity to submit amended declarations. It is 9 HEREBY ORDERED that Defendants may submit amended declarations in support of their 10 motion for summary judgment within fourteen (14) days from the date of service of this order. 11 Failure to submit amended declarations in a timely manner will be construed as waiver of the 12 opportunity to submit amended declarations. 13 14 15 3b142a 16 17 18 19 20 21 22 23 24 25 26 27 28 c o n s id e r e d as evidence. IT IS SO ORDERED. Dated: July 19, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 2

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