Smith v. Schwarzenegger et al

Filing 150

ORDER, signed by District Judge Susan R. Bolton on 4/28/15: Plaintiff's responsive memorandum to Motion for Summary Judgment due no later than May 26, 2015. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRESON DIVISION

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1:07-cv-1547 SRB (PC)

Michael Lenoir Smith,

ORDER

Plaintiff,
v.
Arnold Schwarzenegger, et al.,
Defendants.

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On April 20, 2015, Defendants filed a Motion for Summary Judgment. Because
Plaintiff is acting pro se in this matter, the Court advises Plaintiff of the following:
NOTICE — WARNING TO PLAINTIFF
Defendants’ Motion for Summary Judgment seeks to have your case dismissed for
failure to exhaust prison administrative remedies as required by 42 U.S.C. § 1997e(a) and
on the merits. A motion for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary
judgment. Generally, summary judgment must be granted when there is no genuine issue
of material fact — that is, if there is no real dispute about any fact that would affect the
result of your case, the party who asked for summary judgment is entitled to judgment as

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a matter of law, which will end your case. Because Defendants seek summary judgment
based on your failure to exhaust prison administrative remedies, if Defendants produce
admissible evidence demonstrating that you failed to exhaust available administrative
remedies, your complaint will be dismissed without prejudice unless your response to
Defendants’ motion includes admissible evidence sufficient to show that you exhausted
all available administrative remedies or that no administrative remedies were available to
you. Types of admissible evidence may include copies of your grievances, grievance
responses, and sworn declarations.
Additionally, when a party you are suing makes a motion for summary judgment
on the merits that is properly supported by declarations (or other sworn testimony), you
cannot simply rely on what your complaint says to oppose that motion. Instead, you must
set out specific facts in declarations, depositions, answers to interrogatories, or
authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the
Defendants’ declarations and documents and show that there is a genuine issue of
material fact for trial. If you do not submit your own evidence in opposition, summary
judgment, if appropriate, may be entered against you. If summary judgment is granted,
your case will be dismissed and there will be no trial.
EASTERN DISTRICT OF CALIFORNIA LOCAL RULE REQUIREMENTS
In accordance with Local Rule 260(a), Defendants have filed a Statement of
Undisputed Facts that contains discrete, specific materials facts to support their
entitlement to summary judgment. In response to this Statement, Local Rule 260(b)
requires you to “reproduce the itemized facts in the Statement of Undisputed Facts and
admit those facts that are undisputed and deny those that are disputed, including with
each denial a citation to the particular portions of any pleading, affidavit, deposition,
interrogatory answer, admission, or other document relied upon in support of that denial.”
You may also “file a concise Statement of Disputed Facts, and the source thereof in the
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record, of all additional material facts as to which there is a genuine issue precluding
summary judgment or adjudication.” Id. You are responsible for filing all evidentiary
documents cited in the opposing papers. Id. If additional discovery is needed to oppose
summary judgment, Local Rule 260(b) requires you to “provide a specification of the
particular facts on which discovery is to be had or the issues on which discovery is
necessary.”
RULE 230(l) CAUTIONARY NOTICE

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Local Rule of Civil Procedure 230(l) states in relevant part that "[f]ailure of the
responding party to file an opposition or to file a statement of no opposition may be
deemed a waiver of any opposition to the granting of the motion and may result in the
imposition of sanctions.” See also Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994).
Plaintiff should take notice that the Court will interpret the failure to respond to
Defendants’ Motion by the deadline set forth in this Order as consent to the Motion. See
id.at 652 (affirming the district court's summary granting of a motion for summary
judgment under local rule when non-moving party was given express warning of
consequences of failing to respond).
It is Plaintiff's obligation to timely respond to all motions. Defendants’ Motion
will be summarily granted if Plaintiff fails to respond in accordance with the provisions
of this Order.
RULE 41 CAUTIONARY NOTICE
Plaintiff should also take notice that the failure to timely comply with every
provision of this Order, or any other order entered in this matter, may result in the
dismissal of the Complaint or the action pursuant to Federal Rule of Civil Procedure
41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that the
district court may dismiss an action for failure to comply with any order of the court),
cert. denied, 506 U.S. 915 (1992). Plaintiff is warned that failure to strictly adhere to the
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provisions of this or any other Court Order will result in dismissal of Plaintiff's
Complaint pursuant to Rule 41.
IT IS ORDERED directing Plaintiff to file with the Clerk of the Court and serve
on opposing counsel a responsive memorandum to Defendants’ Motion for Summary
Judgment no later than May 26, 2015.

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Dated this 28th day of April, 2015.

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