Gamez v. Gonzalez, et al.

Filing 83

ORDER VACATING Hearing Date and RESETTING Hearing Date For July 18, 2011; AND Providing Notice Pursuant to Klingele/Rand to Pro Se Prisoner of Requirements For Opposiing Summary Judgment, signed by District Judge M. James Lorenz on 5/26/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION

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SERGIO ALEJANDRO GAMEZ,
CDCR #C-47759,

Civil No.

Plaintiff,

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ORDER:

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(1) VACATING HEARING DATE
AND RESETTING HEARING DATE
FOR JULY 18, 2011; AND

vs.

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

F. GONZALES, et al.,

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Defendants.

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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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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
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08cv1113 MJL (PCL)

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Defendants have filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56, by

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which they seek to have your case dismissed. A Motion for Summary Judgment under Rule 56

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of the Federal Rules of Civil Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a Motion for Summary Judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material fact--

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that is, if there is no real dispute about any fact that would affect the result of your case, and the

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party who asked for summary judgment is entitled to judgment as a matter of law, which will

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end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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your complaint says. Instead, you must set out specific facts in declarations, depositions,

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answers to interrogatories, or authenticated documents, as provided by Rule 56(e), that

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contradict the facts shown in the defendants’ declarations and documents and show that there

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is a genuine issue of material fact for trial. If you do not submit your own evidence in

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opposition, summary judgment, if appropriate, may be entered against you. If summary

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judgment is granted, your case will be dismissed and there will be no trial.

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Conclusion and Order

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Accordingly, IT IS ORDERED that:

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(1)

Plaintiff’s Motion for Summary Judgment and Defendants’ Cross-Motion for

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Summary Judgment have been calendared for hearing on Monday, July 18, 2011, in Courtroom

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14. The previous hearing date of June 6, 2011 is VACATED. Defendants’ Opposition to

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Plaintiff’s Motion and Plaintiff’s Opposition to Defendants Cross-Motion (including any

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supporting documents) must be filed with the Court and served on all parties by Tuesday, July

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5, 2011. Defendants are instructed that Plaintiff shall not be limited in the amount of copies

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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
district 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).
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necessary to prepare his Opposition.

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chooses not to file an Opposition, that party should file and serve a “Notice of Non-Opposition”

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by that same date to let both the Court and all parties know that the Motion is unopposed.

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See Cal. Code Regs. tit. 15, § 3162(c). If either party

If either party does file and serve an Opposition, the other party must file and serve their
Reply to that Opposition by Monday, July 11, 2011.

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At the time appointed for hearing, the Court will, in its discretion, consider Plaintiff’s

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Motion for Summary Judgment and Defendants’ Cross-Motion for Summary Judgment pursuant

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to FED.R.CIV.P. 56 as submitted on the papers, and will issue its written opinion soon thereafter.

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Thus, unless otherwise ordered, no appearances are required and no oral argument will be heard.

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IT IS SO ORDERED.

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DATED: May 26, 2011

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M. James Lorenz
United States District Court Judge

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