Jacobsen v. Curran et al

Filing 41

ORDER REQUIRING Plaintiff to File Opposition to Defendants' Motions for Summary Judgment; NOTICE and WARNING of Requirements for Opposing Defendants' Motion for Summary Judgment; Twenty-One (21) Day Deadline signed by Magistrate Judge Michael J. Seng on 11/28/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL NEIL JACOBSEN, Plaintiff, 12 13 14 v. OFFICER CURRAN, et al., 15 Defendants. 16 17 CASE No. 1:16-cv-01050-MJS (PC) ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 35, 38) NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TWENTY-ONE (21) DAY DEADLINE 18 19 20 21 22 23 Plaintiff is a former county inmate proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s first amended complaint against Defendants Curran and Gonzalez1 for inadequate medical care in violation of the Eighth Amendment of the United States Constitution. (ECF No. 11.) 24 25 26 Before the Court are Defendants Curran and Gonzalez’s motions for summary judgment asserting that Plaintiff has failed to state a claim for which relief may be granted and has failed to exhaust his administrative remedies. (ECF Nos. 35, 38.) 27 1 28 Nurse Dulces Gonzalez (erroneously named in the complaint as Nurse Dulces). Hereinafter Defendant Gonzalez. 1 Plaintiff has not filed an opposition or statement of non-opposition to Defendant’s 2 motions, and the time for doing so has passed. Local Rule 230(l). Given Plaintiff’s pro se 3 status and incarceration, the Court will give Plaintiff one further opportunity to respond to 4 the motions: Plaintiff must file an opposition or a statement of non-opposition to 5 Defendants’ motions for summary judgment within twenty-one (21) days from the date of 6 service of this Order. 7 Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 8 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the 9 Court hereby notifies Plaintiff of the following rights and requirements for opposing the 10 motion: 11 1. 12 to Local Rule 230(l). 13 2. 14 Defendants’ motions for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 15 opposition or a statement of non-opposition to the motions, this action may be 16 dismissed, with prejudice, for failure to prosecute. The opposition or statement of non- 17 opposition must be filed not more twenty one (21) days from the date of service of this 18 order. Id. 19 3. 20 favor of Defendants, on some or all of Plaintiff’s claims. Fed. R. Civ. P. 56(a). 21 Defendants’ motions set forth the facts which they contend are not reasonably subject to 22 dispute and that entitle them to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is 23 called the statement of undisputed facts. Local Rule 260(a). Unless otherwise ordered, all motions for summary judgment are briefed pursuant Plaintiff is required to file an opposition or a statement of non-opposition to A motion for summary judgment is a request for judgment without trial, and in 24 Plaintiff has the right to oppose the motions for summary judgment. To oppose 25 the motions, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set 26 forth in Defendants’ motions but argue that Defendants are not entitled to judgment as a 27 matter of law. In the alternative, if Plaintiff does not agree with the facts set forth in 28 Defendants’ motions, he may show that Defendants’ facts are disputed in one or more of 2 1 the following ways: (1) Plaintiff may rely upon statements made under the penalty of 2 perjury in the complaint or the opposition if (a) the complaint or opposition shows that 3 Plaintiff has personal knowledge of the matters stated and (b) Plaintiff calls to the Court’s 4 attention those parts of the complaint or opposition upon which Plaintiff relies; (2) Plaintiff 5 may serve and file declarations setting forth the facts which Plaintiff believes prove his 6 claims;2 (3) Plaintiff may rely upon written records but Plaintiff must prove that the 7 records are what he claims they are;3 or (4) Plaintiff may rely upon all or any part of the 8 transcript of one or more depositions, answers to interrogatories, or admissions obtained 9 in this proceeding. Should Plaintiff fail to contradict Defendants’ motions with 10 declarations or other evidence, Defendants’ evidence will be taken as truth, and final 11 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 12 In opposing Defendants’ motions for summary judgment, Local Rule 260(b) 13 requires Plaintiff to reproduce Defendants’ itemized facts in the statement of undisputed 14 facts and admit those facts which are undisputed and deny those which are disputed. If 15 Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to support that 16 denial (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other 17 document). Local Rule 260(b). 18 4. 19 yet able to present facts to justify the opposition to the motion, the Court will consider a 20 request to postpone consideration of Defendants’ motions. Fed. R. Civ. P. 56(d). Any 21 request to postpone consideration of Defendants’ motions for summary judgment must 22 include the following: (1) a declaration setting forth the specific facts Plaintiff hopes to 23 elicit from further discovery, (2) a showing that the facts exist, and (3) a showing that the If discovery has not yet been opened or if discovery is still open and Plaintiff is not 24 2 25 26 27 28 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. 3 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(c). 3 1 facts are essential to opposing the motion for summary judgment. Blough v. Holland 2 Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City and County of San 3 Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of California v. Campbell, 138 4 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motions for summary 5 judgment must identify what information is sought and how it would preclude summary 6 judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. Ryan, 7 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 8 5. 9 of perjury have no evidentiary value. Unsigned declarations will be stricken, and declarations not signed under penalty 10 6. The failure of any party to comply with this Order, the Federal Rules of Civil 11 Procedure, or the Local Rules of the Eastern District of California may result in the 12 imposition of sanctions including but not limited to dismissal of the action or entry of 13 default. 14 Based on the foregoing, Plaintiff is HEREBY ORDERED to file an opposition or 15 statement of non-opposition to Defendants’ motions for summary judgment within 16 twenty-one (21) days of the service of this order. If Plaintiff fails to file an opposition 17 or statement of non-opposition within twenty-one days, the Court will recommend 18 dismissal of this action with prejudice for failure to obey a court order and failure 19 to prosecute. 20 21 22 IT IS SO ORDERED. Dated: November 28, 2017 /s/ 23 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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