Parks v. Tait et al

Filing 65

ORDER Providing Notice Pursuant to Klingele / Rand to Pro Se Prisoner of Requirements for Opposing Summary Judgment signed by District Judge Marilyn L. Huff on 06/04/2010. Motion for Summary Judgment has been calendared for hearing on Monday, July 26, 2010, in Courtroom 13. Opposition due by 7/12/2010; Reply due by 7/19/2010. (Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Klingele and Rand together require the district court "as a bare minimum," to ensure that a pro se prisoner has "fair notice of the requirements of the summary judgment rule." Klingele, 849 F.2d at 411 (quotations omitted). "It would not be realistic to impute to a prison inmate ... an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature, on affidavits, so that not submitting counter affidavits is the equivalent of not presenting any evidence at trial." Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (internal quotation omitted). Actual knowledge or any level of legal sophistication does not obviate the need for judicial explanation. Rand, 113 F.3d at 1523 (citing Klingele, 849 F.2d at 411-12). Thus, the
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

CHARLES AUSTIN PARKS, CDCR #K-72151,

Civil No.

08-1031 MLH (JMA)

Plaintiff, vs. R. TAIT, et al., Defendants.

ORDER PROVIDING NOTICE PURSUANT TO KLINGELE / RAND TO PRO SE PRISONER OF REQUIREMENTS FOR OPPOSING SUMMARY JUDGMENT

This notice is required to be given to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988):1

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Defendants have filed a Motion to Dismiss and a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No.64], by which they seek to have your case dismissed. 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, and the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided by 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. Conclusion and Order Accordingly, IT IS ORDERED that Defendants' Motion for Summary Judgment has been calendared for hearing on Monday, July 26, 2010, in Courtroom 13.2 Your Opposition (including any supporting documents) must be filed with the Court and served on all parties by Monday, July 12, 2010. Defendants are instructed that Plaintiff shall not be limited in the amount of copies necessary to prepare his Opposition. See Cal. Code Regs. tit. 15, § 3162(c). If you do not wish to oppose Defendants' Motion, you should file and serve a "Notice of Nondistrict court must ensure that the prisoner knows "about his `right to file counter-affidavits or other responsive materials and [to] alert[] [him] to the fact that his failure to so respond might result in the entry of summary judgment against him.'" Jacobsen, 790 F.2d at 1365 n.8 (quoting Klingele, 849 F.2d at 411). While this case was randomly referred upon filing to the Honorable Magistrate Judge Jan M. Adler pursuant to 28 U.S.C. § 636(b)(1)(B) for disposition, the Court has determined that a Report and Recommendation regarding the disposition of Defendants' Motion for Summary Judgment is unnecessary.
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Opposition" by that same date to let both the Court and Defendants know that the Motion is unopposed. If you do file and serve an Opposition, Defendants must file and serve their Reply to that Opposition by Monday, July 19, 2010. At the time appointed for hearing, the Court will, in its discretion, consider Defendants' Motion to Dismiss and Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 as submitted on the papers, and will issue its written opinion soon thereafter. Thus, unless otherwise ordered, no appearances are required and no oral argument will be heard. IT IS SO ORDERED. Dated: June 4, 2010 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

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