Valencia v. Harris et al

Filing 41

ORDER Requiring Plaintiff to File Opposition to Defendants' Motion for Summary Judgment; NOTICE and Warning of Requirements for Opposing Defendants' Motion for Summary Judgment signed by Magistrate Judge Michael J. Seng on 11/07/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:10cv-01725-AWI-MJS (PC)

DON VALENCIA,

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ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Plaintiff,

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v.

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HARRIS et al.,

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(ECF No. 40)
TWENTY-ONE (21) DAY DEADLINE

Defendants.

NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this

23 civil rights action filed pursuant to 42 U.S.C. § 1983. The matter proceeds on a failure to
24 protect claim against Defendants Harris, Fell, Riggs, Webb, Hittle, Anderson, Dean, and
25 Scott. On August 1, 2014, Defendants filed a motion for summary judgment which
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notified Plaintiff of his rights, obligations and methods for opposing Defendants’ motion.
Plaintiff’s opposition or statement of non-opposition was due by not later than

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1 August 26, 2014. Local Rule 230(l). The August 26, 2014, deadline passed without
2 Plaintiff responding or seeking an extension of time to do so.
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The Court will give Plaintiff one further opportunity to respond to the motion:
Plaintiff must file an opposition or a statement of non-opposition to Defendants’ motion

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for summary judgment within twenty-one (21) days from the date of service of this

7 Order.
Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland,

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9 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988),
10 the Court hereby notifies Plaintiff of the following rights and requirements for opposing
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the motion:
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1.
Unless otherwise ordered, all motions for summary judgment are briefed
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pursuant to Local Rule 230(l).
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Plaintiff is required to file an opposition or a statement of non-opposition to

16 Defendants’ motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an
17 opposition or a statement of non-opposition to the motion, this action may be dismissed,
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with prejudice, for failure to prosecute. The opposition or statement of non-opposition
must be filed not more twenty one (21) days from the date of service of this Order. Id.

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3.

A motion for summary judgment is a request for judgment on some or all of

22 Plaintiff’s claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants’
23 motion sets forth the facts which they contend are not reasonably subject to dispute and
24 that entitle them to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the
25 statement of undisputed facts. Local Rule 260(a).
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Plaintiff has the right to oppose the motion for summary judgment. To oppose the

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motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set
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1 forth in Defendants’ motion but argue that Defendants are not entitled to judgment as a
2 matter of law. In the alternative, if Plaintiff does not agree with the facts set forth in
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Defendants’ motion, he may show that Defendants’ facts are disputed in one or more of

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the following ways: (1) Plaintiff may rely upon statements made under the penalty of
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perjury in the complaint or the opposition if (a) the complaint or opposition shows that

7 Plaintiff has personal knowledge of the matters stated and (b) Plaintiff calls to the
8 Court’s attention those parts of the complaint or opposition upon which Plaintiff relies;
9 (2) Plaintiff may serve and file declarations setting forth the facts which Plaintiff believes
10 prove his claims;1 (3) Plaintiff may rely upon written records but Plaintiff must prove that
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the records are what he claims they are;2 or (4) Plaintiff may rely upon all or any part of
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the transcript of one or more depositions, answers to interrogatories, or admissions
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obtained in this proceeding. Should Plaintiff fail to contradict Defendants’ motion with
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15 declarations or other evidence, Defendants’ evidence will be taken as truth, and final
16 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)

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requires Plaintiff to reproduce Defendants’ itemized facts in the statement of undisputed

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facts and admit those facts which are undisputed and deny those which are disputed. If

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Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to support that

22 denial (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other
23 document). Local Rule 260(b).
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A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2)

25 which are based on the personal knowledge of the person giving the statement, and (3) to which the
person giving the statement is competent to testify. 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4). A

26 declaration must be dated and signed under penalty of perjury as follows: “I declare (or certify, verify or
state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28

27 U.S.C. § 1746.
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Sworn or certified copies of all papers referred to in the declaration must be included and served

28 on the opposing party. Fed. R. Civ. P. 56(c).

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1 4.

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

2 not yet able to present facts to justify the opposition to the motion, the Court will
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consider a request to postpone consideration of Defendants’ motion. Fed. R. Civ. P.
56(d). Any request to postpone consideration of Defendants’ motion for summary

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judgment must include the following: (1) a declaration setting forth the specific facts

7 Plaintiff hopes to elicit from further discovery, (2) a showing that the facts exist, and (3)
8 a showing that the facts are essential to opposing the motion for summary judgment.
9 Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City
10 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

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motion for summary judgment must identify what information is sought and how it would
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preclude summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-

15 01; Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b).
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Unsigned declarations will be stricken, and declarations not signed under penalty

17 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

Procedure, or the Local Rules of the Eastern District of California may result in the

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

22 default.
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24 IT IS SO ORDERED.
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Dated:

November 7, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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