Shepard v. Tilton et al

Filing 57

AMENDED SECOND INFORMATIONAL ORDER - NOTICE and WARNING of Requirements for Opposing Defendants' Summary Judgment Motion, signed by Magistrate Judge Dennis L. Beck on 7/18/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONTH SHEPARD,

CASE NO. 1:10-cv-00023-DLB PC

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Plaintiff,

AMENDED SECOND INFORMATIONAL

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v.

ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING

JAMES E. TILTON, et al.,

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DEFENDANTS’ SUMMARY JUDGMENT

Defendants.

MOTION

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Plaintiff is a state prisoner proceeding pro se in this civil action. Defendants filed a

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motion for summary judgment on June 26, 2012, and pursuant to Woods v. Carey, Nos. 09-

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15548, 09-16113, 2012 WL 2626912 (9th Cir. Jul. 6, 2012), Rand v. Rowland, 154 F.3d 952 (9th

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Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies

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Plaintiff of the following rights and requirements for opposing the motion:

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1. Unless otherwise ordered, all motions for summary judgment are briefed pursuant to
Local Rule 230(l).
2. Plaintiff is required to file an opposition or a statement of non-opposition to

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Defendants’ motion for summary judgment. L.R. 230(l). If Plaintiff fails to file an opposition or

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a statement of non-opposition to the motion, this action may be dismissed, with prejudice, for

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failure to prosecute. The opposition or statement of non-opposition must be filed not more than

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21 days after the date of service of the motion. Id.

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3. A motion for summary judgment is a request for judgment on some or all of Plaintiff’s

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claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants’ motion sets forth

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the facts which they contend are not reasonably subject to dispute and that entitle them to

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judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed

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Facts. L.R. 260(a).

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

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Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in

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Defendants’ motion but argue that Defendants are not entitled to judgment as a matter of law.

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In the alternative, if Plaintiff does not agree with the facts set forth in Defendants’

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motion, he may show that Defendants’ facts are disputed in one or more of the following ways:

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(1) Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the

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opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the

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matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or

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opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth

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the facts which Plaintiff believes prove his claims; (3) Plaintiff may rely upon written records but

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Plaintiff must prove that the records are what he claims they are; or (4) Plaintiff may rely upon

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all or any part of the transcript of one or more depositions, answers to interrogatories, or

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admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants’ motion

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with 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. Fed. R. Civ. P. 56(e).

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In opposing Defendants’ motion for summary judgment, Local Rule 260(b) requires

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Plaintiff to reproduce Defendants’ itemized facts in the Statement of Undisputed Facts and admit

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those facts which are undisputed and deny those which are disputed. If Plaintiff disputes

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(denies) a fact, Plaintiff must cite to the evidence used to support that denial (e.g., pleading,

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declaration, deposition, interrogatory answer, admission, or other document). L.R. 260(b).

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4. If discovery has not yet been opened or if discovery is still open and Plaintiff is not yet

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able to present facts to justify the opposition to the motion, the Court will consider a request to

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postpone consideration of Defendants’ motion. Fed. R. Civ. P. 56(d). Any request to postpone

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consideration of Defendants’ motion for summary judgment must include the following: (1) a

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declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, (2) a

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showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion

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for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009);

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Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of

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California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion

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for summary judgment must identify what information is sought and how it would preclude

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summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v.

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Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b).

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5. Unsigned declarations will be stricken, and declarations not signed under penalty of
perjury have no evidentiary value.

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6. 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 the Eastern District of California may result in the imposition of

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sanctions including but not limited to dismissal of the action or entry of default.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

July 18, 2012

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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L. Beck

3b142a

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