Tate v. Cate et al

Filing 65

INFORMATIONAL ORDER RE Motion for Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 8/15/12. (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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LARRY TATE,

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Case No. 1:09-cv-00770-LJO-JLT (PC)

Plaintiff,

INFORMATIONAL ORDER RE
MOTION FOR SUMMARY JUDGMENT

v.
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MATTHEW CATE, 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 January 23, 2012, the Defendant filed a motion for summary judgment. (Doc. 60). Plaintiff

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has failed to file an opposition to this motion despite the Court ordering him to do so. (Doc.64)

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Plaintiff is advised, once again, that Local Rule 230(l) provides that the failure to oppose a

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motion “may be deemed a waiver of any opposition to the granting of the motion . . . .” This

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means that the court may deem Plaintiff’s failure to oppose defendant’s motion to dismiss as a

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waiver, and may recommend that the motion be granted on that basis.

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Additionally, pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v.

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Rowland, 154 F.3d 952 (9th Cir. 1998), plaintiff is advised of the following requirements for

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

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Rules of Civil Procedure:

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1.

Such a motion is a request for an order for judgment on some or all of plaintiff’s
claims in favor of defendants without trial. See Rule 56(b).
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2.

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

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

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See Rule 56(c).

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3.

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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6.

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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7.

A motion supported by affidavits or declarations that are unsigned will be stricken.
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8.

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 granted until September 7, 2012 to file an 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_Signature-END:

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