Blacher v. Johnson et al

Filing 116

ORDER Requiring Plaintiff to Resubmit Declaration 114 , signed by Magistrate Judge Erica P. Grosjean on 6/29/17: 14-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
MARLON BLACHER,
12
Plaintiff,
13
v.

Case No. 1:12-cv-01159-EPG (PC)
ORDER REQUIRING PLAINTIFF TO
RESUBMIT DECLARATION
(ECF NO. 114)

14
S. JOHNSON,
15
Defendant.
16
17
18
19

On June 28, 2017, Plaintiff filed his objection to Defendant’s motion for summary
(ECF No. 114).

As evidence, Plaintiff included his “Affidavit to Support the

20

judgment.

21

Plaintiff’s Response.” (Id. at pgs. 23-25). However, Plaintiff did not sign the declaration under

22

penalty of perjury. Instead, Plaintiff stated “The undersigned Affiant, Marlon-Jessie: Blacher,

23

i.e. “the Undersigned,” does herewith certify and attest on the Undersigned’s unlimited-liability

24

that the Undersigned issues this Affidavit with sincere intent, that the Undersigned is competent

25

to state the matters set forth herein, that the contents are true, correct, complete, and certain,

26

admissible as evidence, not misleading, and the truth, the whole truth, and nothing but the truth to

27

the best of the Undersigned’s knowledge, understanding, and in accord with the Undersigned’s

28

firmly held spiritual convictions and creed re God Almighty.” (Id. at 25).
1

1
2
3
4

To be admissible, a declaration must be subscribed by the declarant as true under penalty
of perjury, in substantially the following form: “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. Specifically, Section 1746 states as follows:

5
6
7
8
9
10
11
12
13
14
15
16

Wherever, under any law of the United States or under any rule, regulation, order,
or requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in writing of the person making the same
(other than a deposition, or an oath of office, or an oath required to be taken before
a specified official other than a notary public), such matter may, with like force
and effect, be supported, evidenced, established, or proved by the unsworn
declaration, certificate, verification, or statement, in writing of such person which
is subscribed by him, as true under penalty of perjury, and dated, in substantially
the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state)
under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on (date).
(Signature)”.
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)”.

17
18

28 U.S.C.A. § 1746 (emphasis added).

19

“Although a lack of swearing to the declaration may not be a fatal defect, the declaration

20

must be made under penalty of perjury and must be attested to be true.” Weldon v. Anaya, No.

21

115CV00856DADMJS, 2017 WL 1349005, at *2 (E.D. Cal. Apr. 6, 2017) (citing Cobell v.

22

Norton, 310 F.Supp.2d 77, 84 (D.D.C. 2004).

23
24
25
26
27
28

While Plaintiff does attest that the statements in his declaration (which Plaintiff refers to
as an affidavit) are true and correct, he does not do so under penalty of perjury. This is a fatal
defect. However, the Court will give Plaintiff the opportunity to resubmit his declaration. See
Fed. R. Civ. P. 56(e)(1), (4).
Therefore, based on the foregoing, IT IS ORDERED that Plaintiff has fourteen days from
the date of service of this order to resubmit his declaration in support of his objection to
2

1
2
3

Defendant’s motion for summary judgment.
If Plaintiff fails to respond the Court will disregard the evidence in Plaintiff’s declaration
in considering Defendant’s motion for summary judgment.

4
5

IT IS SO ORDERED.

6
Dated:

June 29, 2017

/s/

7

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3