Strong v. Elliot

Filing 51

INFORMATIONAL ORDER RE Motion for Summary Judgment signed by Magistrate Judge Jennifer L. Thurston on 08/15/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE BERRY STRONG,

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Case No. 1:09-cv-00583 AWI JLT (PC)

Plaintiff,

INFORMATIONAL ORDER RE
MOTION FOR SUMMARY JUDGMENT

v.
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KENNETH ELLIOTT, et al.,
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Defendants.
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Plaintiff is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. §1983.

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On December 20, 2011, Defendants filed a motion for summary judgment. (Doc. 40). Plaintiff

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filed his opposition on March 8, 2012 and a sur-reply on March 28, 2012 (Doc. 48).

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Plaintiff is advised that pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), of the following requirements for opposing a

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motion for summary judgment made by defendants pursuant to Rule 56 of the Federal Rules of

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Civil Procedure:

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claims in favor of defendants without trial. See Rule 56(b).

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Such a motion is a request for an order for judgment on some or all of plaintiff’s

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Defendant(s)’ motion set forth the facts which defendants contend are not reasonably

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subject to dispute and that entitle defendant to judgment as a matter of law. See Rule

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56(c).

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

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motion, plaintiff must show proof of his or her claims. Plaintiff may agree with the facts

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set forth in defendant(s)’ motion but argue that defendant(s) are not entitled to judgment

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as a matter of law.

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4.

Plaintiff may show defendant(s)’ facts are disputed in one or more of the following

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ways: (1) Plaintiff may rely upon statements made under the penalty of perjury in the

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complaint if the complaint shows that plaintiff has personal knowledge of the matters

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stated and if plaintiff calls to the court's attention those parts of the complaint upon

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which plaintiff relies; (2) Plaintiff may also serve and file affidavits or declarations

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setting forth the facts which plaintiff believes prove plaintiff's claims (the persons who

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sign the affidavit or declaration must have personal knowledge of the facts stated); (3)

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Plaintiff may also rely upon written records but plaintiff must prove that the records are

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what plaintiff claims they are; (4) Plaintiff may also rely upon all or any part of the

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transcript of one or more depositions, answers to interrogatories, or admissions obtained

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in this proceeding. Should plaintiff fail to contradict defendants’ motion with affidavits,

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declarations, or other evidence, defendants’ evidence will be taken as truth, and final

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judgment may be entered without a full trial. See Rule 56(e).

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5.

If there is some good reason why such facts are not available to plaintiff when

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required to oppose such a motion, the court will consider a request to postpone

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considering defendant(s)’ motion. See Rule 56(f).

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If plaintiff does not serve and file a request to postpone consideration of defendant(s)’

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motion or written opposition to the motion, the court may consider plaintiff’s failure to

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act as a waiver of opposition to defendant(s)’ motion. Plaintiff’s waiver of opposition to

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defendant(s)’ motion may result in the entry of summary judgment against plaintiff.

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A motion supported by affidavits or declarations that are unsigned will be stricken.

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The failure of any party to comply with this order, the Federal Rules of Civil

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Procedure, or the Local Rules of Court, may result in the imposition of sanctions

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including, but not limited to, dismissal of the action or entry of default.
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Plaintiff is advised that any declarations submitted by him must be dated and signed

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under penalty of perjury. His own declaration must set forth every fact within his

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personal knowledge that he relies upon to oppose the motion. He cannot merely say

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that facts set forth in other documents are true; the facts must be set forth in the

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declaration itself. Also, all declarations must set forth how they declaring witness

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knows what he says he know whether the witness saw something happen, heard it, or

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felt it, for example. The failure of declarants to comply with this guidance will result in

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the Court refusing to consider their declarations.

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10.

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Plaintiff is granted until September 7, 2012 to file supplemental opposition to the
motion, if he chooses.

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IT IS SO ORDERED.
Dated:

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August 15, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Sig nature-END:

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