Williams v. Cates et al

Filing 107

SECOND INFORMATIONAL ORDER - Notice and Warning of Requirements to Oppose Defendants' 106 Motion for Summary Judgment, signed by Magistrate Judge Sheila K. Oberto on 9/11/17. Twenty-One Day Deadline. (Gonzalez, R)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 HORACE MANN WILLIAMS, Plaintiff, 10 11 12 v. CATES, et al., Case No. 1:12-cv-00730-LJO-SKO (PC) SECOND INFORMATIONAL ORDER - NOTICE AND WARNING OF REQUIREMENTS TO OPPOSE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 106) Defendants. 13 TWENTY-ONE (21) DAY DEADLINE 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff, Horace Mann Williams, is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Defendants filed a motion for summary judgment for Plaintiff’s failure to exhaust his administrative remedies prior to filing suit. (Doc. 106.) Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), cert denied --- U.S. ---, 135 S.Ct. 228 (2014), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies Plaintiff of the rights and requirements for opposing the motion. 1. Unless otherwise ordered, all motions for summary judgment are briefed in accordance with Local Rule 230(l). 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, 27 with prejudice, for failure to prosecute. The opposition or statement of non-opposition must be 28 1 1 filed not more than twenty-one (21) days after the date of service of the motion. Id. 2 3. A motion for summary judgment is a request for judgment on some or all of Plaintiff=s 3 claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants’ motion sets forth 4 the facts which they contend are not reasonably subject to dispute and that entitle them to 5 judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed 6 Facts. Local Rule 260(a). 7 Plaintiff has the right to oppose a motion for summary judgment. To oppose the motion, 8 Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 9 Defendants’ motion but argue that Defendants are not entitled to judgment as a matter of law. 10 In the alternative, if Plaintiff does not agree with the facts set forth in Defendants’ motion, 11 Plaintiff may show that Defendants’ facts are disputed in one or more of the following ways: (1) 12 Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the 13 opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the 14 matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or 15 opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth 16 the facts which Plaintiff believes prove his claims;1 (3) Plaintiff may rely upon written records but 17 Plaintiff must prove that the records are what he claims they are;2 or (4) Plaintiff may rely upon 18 all or any part of the transcript of one or more depositions, answers to interrogatories, or 19 admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants’ motion 20 with declarations or other evidence, Defendants’ evidence will be taken as truth, and final 21 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 22 In opposing Defendants’ motion for summary judgment, Local Rule 260(b) requires 23 Plaintiff to reproduce Defendants’ itemized facts in the Statement of Undisputed Facts and admit 24 those facts which are undisputed and deny those which are disputed. If Plaintiff disputes (denies) 25 26 27 28 1 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: “I 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. 2 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). 2 1 a fact, Plaintiff must cite to the evidence used to support that denial (e.g., pleading, declaration, 2 deposition, interrogatory answer, admission, or other document). Local Rule 260(b). 3 4. Discovery is open, but if Plaintiff is not yet able to present facts to justify the 4 opposition to the motion, the Court will consider a request to postpone consideration of 5 Defendants’ motion. Fed. R. Civ. P. 56(d). Any request to postpone consideration of 6 Defendants’ motion for summary judgment must include the following: (1) a declaration setting 7 forth the specific facts Plaintiff hopes to elicit from further discovery, (2) a showing that the facts 8 exist, and (3) 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 and 10 County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of California v. 11 Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion for summary 12 judgment must identify what information is sought and how it would preclude summary 13 judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. Ryan, 140 14 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 5. Unsigned declarations will be stricken, and declarations not signed under penalty of 15 16 perjury have no evidentiary value. 6. The failure of any party to comply with this order, the Federal Rules of Civil 17 18 Procedure, or the Local Rules of the Eastern District of California may result in the 19 imposition of sanctions including but not limited to dismissal of the action or entry of 20 default. 21 22 23 24 IT IS SO ORDERED. Dated: September 11, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3 .

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