Valdez v. Beard et al

Filing 100

ORDER Requiring Plaintiff to File Opposition to Defendant's Motion for Summary Judgment 85 ; NOTICE and WARNINIG of Requirements for Opposing Defendant's Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 4/15/2018: 14-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VALDEZ, Plaintiff, 12 13 14 15 Case No. 1:14-cv-01839-AWI-MJS (PC) ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. JEFFREY BEARD, (ECF No. 85) Defendant. NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 17 FOURTEEN (14) DAY DEADLINE 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s due process claims against Defendants Beard, Castorena, , Galaviz, Jennings, Pina, , Holland, Prince, Chavez, Vasquez, Edgar, Garcia, Mayfield, Patterson, Davey, Oliveira, Perez, Campbell, Wilson and Lester. On November 30, 2017, Defendants filed a motion for summary judgment. (ECF No. 85.) Plaintiff has received multiple extensions of time to file his opposition or statement of non-opposition to the motion for summary judgment. (ECF Nos. 90, 95.) 1 On the last motion, Plaintiff was warned that no further extensions would be considered 2 or granted absent unforeseeable good cause. (ECF No. 95.) Nonetheless, Plaintiff failed 3 to file an opposition or non-opposition by the applicable deadline. 4 The Court will give Plaintiff one further opportunity to respond to the motion: 5 Plaintiff must file an opposition or a statement of non-opposition to Defendant’s motion 6 for summary judgment within fourteen (14) days from the date of service of this Order. 7 Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 8 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), 9 the Court hereby notifies Plaintiff of the following rights and requirements for opposing 10 the motion: 11 1. Unless otherwise ordered, all motions for summary judgment are briefed 12 pursuant to Local Rule 230(l). 13 2. Plaintiff is required to file an opposition or a statement of non-opposition to 14 Defendant’s motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 15 opposition or a statement of non-opposition to the motion, this action may be dismissed, 16 with prejudice, for failure to prosecute. The opposition or statement of non-opposition 17 must be filed not more twenty one (21) days from the date of service of this order. Id. 18 3. A motion for summary judgment is a request for judgment without trial, and in 19 favor of Defendant, on some or all of Plaintiff’s claims. Fed. R. Civ. P. 56(a). 20 Defendant’s motion sets forth the facts which he contends are not reasonably subject to 21 dispute and that entitle him to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is 22 called the statement of undisputed facts. Local Rule 260(a). 23 Plaintiff has the right to oppose the motion for summary judgment. To oppose the 24 motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set 25 forth in Defendant’s motion but argue that Defendant is not entitled to judgment as a 26 matter of law. In the alternative, if Plaintiff does not agree with the facts set forth in 27 Defendant’s motion, he may show that Defendant’s facts are disputed in one or more of 28 the following ways: (1) Plaintiff may rely upon statements made under the penalty of 2 1 perjury in the complaint or the opposition if (a) the complaint or opposition shows that 2 Plaintiff has personal knowledge of the matters stated and (b) Plaintiff calls to the 3 Court’s attention those parts of the complaint or opposition upon which Plaintiff relies; 4 (2) Plaintiff may serve and file declarations setting forth the facts which Plaintiff believes 5 prove his claims;1 (3) Plaintiff may rely upon written records but Plaintiff must prove that 6 the records are what he claims they are;2 or (4) Plaintiff may rely upon all or any part of 7 the transcript of one or more depositions, answers to interrogatories, or admissions 8 obtained in this proceeding. Should Plaintiff fail to contradict Defendant’s motion with 9 declarations or other evidence, Defendant’s evidence will be taken as truth, and final 10 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) 11 12 requires Plaintiff to reproduce Defendant’s itemized facts in the statement of undisputed 13 facts and admit those facts which are undisputed and deny those which are disputed. If 14 Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to support that 15 denial (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other 16 document). Local Rule 260(b). 17 4. If discovery has not yet been opened or if discovery is still open and Plaintiff is 18 not yet able to present facts to justify the opposition to the motion, the Court will 19 consider a request to postpone consideration of Defendant’s motion. Fed. R. Civ. P. 20 56(d). Any request to postpone consideration of Defendant’s motion for summary 21 judgment must include the following: (1) a declaration setting forth the specific facts 22 Plaintiff hopes to elicit from further discovery, (2) a showing that the facts exist, and (3) 23 a showing that the facts are essential to opposing the motion for summary judgment. 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 Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City 2 and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of 3 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the 4 motion for summary judgment must identify what information is sought and how it would 5 preclude summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 11006 01; Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 7 5. Unsigned declarations will be stricken, and declarations not signed under penalty 8 of perjury have no evidentiary value. 9 6. The failure of any party to comply with this Order, the Federal Rules of Civil 10 Procedure, or the Local Rules of the Eastern District of California may result in the 11 imposition of sanctions including but not limited to dismissal of the action or entry of 12 default. 13 Based on the foregoing, Plaintiff is HEREBY ORDERED to file an opposition or 14 statement of non-opposition to Defendant’s motion for summary judgment within 15 fourteen (14) days of the service of this order. If Plaintiff fails to file an opposition or 16 statement of non-opposition within fourteen days, the Court will recommend 17 dismissal of this action with prejudice for failure to obey a court order and failure 18 to prosecute. 19 20 21 IT IS SO ORDERED. Dated: April 15, 2018 /s/ 22 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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