Reid v. United States of America et al

Filing 53

ORDER REQUIRING Plaintiff to File Opposition to Defendant's Motion for Summary Judgment; NOTICE and WARNING of Requirements for Opposing Defendant's Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 5/5/17. Twenty-One Day Deadline. (Marrujo, C)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 GORDON C. REID, Plaintiff, 14 15 16 17 18 19 20 Case No. 1:14-cv-01163-LJO-MJS (PC) ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. UNITED STATES OF AMERICA, et al., (ECF No. 52) Defendants. NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TWENTY-ONE (21) DAY DEADLINE 21 22 23 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil 24 rights action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 25 (1971). The action proceeds on Plaintiff’s first amended complaint for a First 26 Amendment retaliation claim against Defendant Ontiveroz. 27 On April 3, 2017, Defendant filed a motion for summary judgment. (ECF No. 52.) 28 Plaintiff has not filed an opposition or statement of non-opposition to Defendant’s 1 motion, and the time for doing so has passed. Local Rule 230(l). The Court will give 2 Plaintiff one further opportunity to respond to the motion: Plaintiff must file an opposition 3 or a statement of non-opposition to Defendant’s motion for summary judgment within 4 twenty-one (21) days from the date of service of this Order. 5 Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 6 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), 7 the Court hereby notifies Plaintiff of the following rights and requirements for opposing 8 the motion: 9 1. Unless otherwise ordered, all motions for summary judgment are briefed 10 pursuant to Local Rule 230(l). 11 2. Plaintiff is required to file an opposition or a statement of non-opposition to 12 Defendant’s motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 13 opposition or a statement of non-opposition to the motion, this action may be dismissed, 14 with prejudice, for failure to prosecute. The opposition or statement of non-opposition 15 must be filed not more twenty-one (21) days from the date of service of this Order. Id. 16 3. A motion for summary judgment is a request for judgment without trial, and in 17 favor of Defendant, on some or all of Plaintiff’s claims. Fed. R. Civ. P. 56(a). 18 Defendant’s motion sets forth the facts which he contends are not reasonably subject to 19 dispute and that entitle him to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is 20 called the statement of undisputed facts. Local Rule 260(a). 21 Plaintiff has the right to oppose the motion for summary judgment. To oppose the 22 motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set 23 forth in Defendant’s motion but argue that Defendant is not entitled to judgment as a 24 matter of law. In the alternative, if Plaintiff does not agree with the facts set forth in 25 Defendant’s motion, he may show that Defendant’s facts are disputed in one or more of 26 the following ways: (1) Plaintiff may rely upon statements made under the penalty of 27 perjury in the complaint or the opposition if (a) the complaint or opposition shows that 28 Plaintiff has personal knowledge of the matters stated and (b) Plaintiff calls to the 2 1 Court’s attention those parts of the complaint or opposition upon which Plaintiff relies; 2 (2) Plaintiff may serve and file declarations setting forth the facts which Plaintiff believes 3 prove his claims;1 (3) Plaintiff may rely upon written records but Plaintiff must prove that 4 the records are what he claims they are;2 or (4) Plaintiff may rely upon all or any part of 5 the transcript of one or more depositions, answers to interrogatories, or admissions 6 obtained in this proceeding. Should Plaintiff fail to contradict Defendant’s motion with 7 declarations or other evidence, Defendant’s evidence will be taken as truth, and final 8 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). In opposing Defendant’s motion for summary judgment, Local Rule 260(b) 9 10 requires Plaintiff to reproduce Defendant’s itemized facts in the Statement of 11 Undisputed Facts and admit those facts which are undisputed and deny those which are 12 disputed. If Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to 13 support that denial (e.g., pleading, declaration, deposition, interrogatory answer, 14 admission, or other document). Local Rule 260(b). 15 4. If discovery has not yet been opened or if discovery is still open and Plaintiff is 16 not yet able to present facts to justify the opposition to the motion, the Court will 17 consider a request to postpone consideration of Defendant’s motion. Fed. R. Civ. P. 18 56(d). Any request to postpone consideration of Defendant’s motion for summary 19 judgment must include the following: (1) A declaration setting forth the specific facts 20 Plaintiff hopes to elicit from further discovery; (2) A showing that the facts exist; and 21 (3) A showing that the facts are essential to opposing the motion for summary judgment. 22 Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City 23 and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of 24 1 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. 2 Sworn or certified copies of all papers referred to in the declaration must be included and served on the 28 opposing party. Fed. R. Civ. P. 56(c). 3 1 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the 2 motion for summary judgment must identify what information is sought and how it would 3 preclude summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 11004 01; Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 5 5. Unsigned declarations will be stricken, and declarations not signed under penalty 6 of perjury have no evidentiary value. 7 6. The failure of any party to comply with this Order, the Federal Rules of Civil 8 Procedure, or the Local Rules of the Eastern District of California may result in the 9 imposition of sanctions including but not limited to dismissal of the action or entry of 10 default. 11 Based on the foregoing, Plaintiff is HEREBY ORDERED to file an opposition or 12 statement of non-opposition to Defendant’s motion for summary judgment within twenty13 one (21) days of the service of this Order. If Plaintiff fails to file an opposition or 14 statement of non-opposition within twenty-one (21) days, the Court will 15 recommend dismissal of this action with prejudice for failure to obey a court 16 order and failure to prosecute. 17 18 19 IT IS SO ORDERED. Dated: May 5, 2017 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4

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