Jacobs v. Quinones et al

Filing 133

SECOND INFORMATIONAL ORDER - Notice and Warning of Requirements for Opposing Defendants' 124 Motion for Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 03/16/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE E. JACOBS, IV,

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Plaintiff,

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v.
QUINONES, et al.,

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Defendants.

Case No. 1:10-cv-02349-AWI-JLT (PC)
SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING
OF REQUIREMENTS FOR OPPOSING
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
(Doc. 124)

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Plaintiff, George E. Jacobs, IV, is a state prisoner proceeding pro se and in forma pauperis

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pursuant to 42 U.S.C. § 1983on his claims against Defendants R. Davis, Pruitt, A.C. Quinones,

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T.J. Williams, Cogdill, Scaiffe, Bardonnex, and Magana in the First Amended Complaint. (Docs.

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11, 17, 24.) Defendants filed a motion for summary judgment on January 30, 2015. (Doc. 124.)

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Pursuant to Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 262 6912 (9th Cir. Jul. 6,

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2012), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand v. Rowland, 154 F.3d 952 (9th Cir.

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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).1

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By concurrently issued order, the briefing schedule has been modified such that Plaintiff's opposition to Defendants'
motion for summary judgment is due thirty days after the date of service of the order on his motions to compel and

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2. Plaintiff is required to file an opposition or a statement of non-opposition to
Defendants' motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an
opposition or a statement of non-opposition to the motion, this action may be dismissed, with
prejudice, for failure to prosecute. Under usual circumstances, the opposition or statement of
non-opposition must be filed not more than 21 days after the date of service of the motion. Id.
However, as previously stated, by concurrently issued order, the briefing schedule has been
modified such that Plaintiff's opposition to Defendants' motion for summary judgment is due
thirty days after the date of service of the order on his motions to compel and for sanctions.

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3. A motion for summary judgment is a request for judgment on some or all of Plaintiff=s
claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants= motion sets forth
the facts which they contend are not reasonably subject to dispute and that entitle them to
judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed
Facts. Local Rule 260(a).

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Plaintiff has the right to oppose a motion for summary judgment. To oppose the motion,
Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 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= motion,
he may show that Defendants= facts are disputed in one or more of the following ways: (1)
Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the
opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the
matters stated and (b) Plaintiff calls to the Court=s attention those parts of the complaint or
opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth
the facts which Plaintiff believes prove his claims;2 (3) Plaintiff may rely upon written records but

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for sanctions.
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A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2) 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 declaration must be dated and signed under
penalty of perjury as follows: AI declare (or certify, verify or state) under penalty of perjury that the foregoing is true
and correct. Executed on (date). (Signature).@ 28 U.S.C. ' 1746.

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Plaintiff must prove that the records are what he claims they are;3 or (4) Plaintiff may rely upon
all or any part of the transcript of one or more depositions, answers to interrogatories, or
admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants= motion
with declarations or other evidence, Defendants= evidence will be taken as truth, and final
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
Plaintiff to reproduce Defendants' itemized facts in the Statement of Undisputed Facts and admit
those facts which are undisputed and deny those which are disputed. If Plaintiff disputes (denies)
a fact, Plaintiff must cite to the evidence used to support that denial (e.g., pleading, declaration,
deposition, interrogatory answer, admission, or other document). Local Rule 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
able to present facts to justify the opposition to the motion, the Court will 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 judgment must include the following: (1) a
declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, (2) a
showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion
for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009);
Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of
California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion
for summary judgment must identify what information is sought and how it would preclude
summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v.
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

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

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Sworn or certified copies of all papers referred to in the declaration must be included and served on the opposing
party. Fed. R. Civ. P. 56(e).

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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.
Dated:

March 16, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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