Bullard v. St. Andra et al

Filing 31

ORDER REQUIRING Plaintiff to File Opposition to Defendant's 23 Motion for Summary Judgment; NOTICE and WARNING of Requirements for Opposing Defendant's Motion for Summary Judgment; Twenty-One 21 Day Deadline signed by Magistrate Judge Michael J. Seng on 3/31/2018. (Sant Agata, S)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
EFREN DANIELLE BULLARD,

CASE No. 1:17-cv-00328-LJO-MJS (PC)

9
Plaintiff,

10
11
12

v.
R. ST. ANDRA, et al.,

ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
(ECF No. 23)

14

NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

15

TWENTY-ONE (21) DAY DEADLINE

13

Defendant.

16
17
18

Plaintiff is a state prisoner proceeding in forma pauperis and with counsel in this

19

civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Eighth

20

Amendment claims against CO Jane Doe and CO Benson; a conspiracy claim against

21

CO Jane Doe and CO Benson; and a First Amendment retaliation claim against CO

22

Davis. (ECF No. 10.)

23

Defendants have filed a motion for summary judgment on the ground Plaintiff

24

failed to exhaust administrative remedies. (ECF No. 23.) Plaintiff has not filed an

25

opposition or statement of non-opposition to Defendants’ motion, and the time for doing

26

so has passed. Local Rule 230(l).

27
28

In light of Plaintiff’s pro se and incarcerated status, the Court will give Plaintiff one

1

further opportunity to respond to the motions: Plaintiff must file an opposition or a

2

statement of non-opposition to Defendants’ motion for summary judgment within twenty-

3

one (21) days from the date of service of this Order.

4

Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154

5

F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the

6

Court hereby notifies Plaintiff of the following rights and requirements for opposing the

7

motion:

8
9
10

1.

Unless otherwise ordered, all motions for summary judgment are briefed

pursuant to Local Rule 230(l).
2.

Plaintiff is required to file an opposition or a statement of non-opposition to

11

Defendants’ motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an

12

opposition or a statement of non-opposition to the motions, this action may be

13

dismissed, with prejudice, for failure to prosecute. The opposition or statement of non-

14

opposition must be filed not more twenty one (21) days from the date of service of this

15

order. Id.

16

3.

A motion for summary judgment is a request for judgment without trial, and

17

in favor of Defendants, on some or all of Plaintiff’s claims. Fed. R. Civ. P. 56(a).

18

Defendants’ motion sets forth the facts which he contends are not reasonably subject to

19

dispute and that entitle them 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 forth

23

in Defendants’ motion but argue that Defendants are not entitled to judgment as a matter

24

of law. In the alternative, if Plaintiff does not agree with the facts set forth in Defendants’

25

motion, he may show that Defendants’ facts are disputed in one or more of the following

26

ways: (1) Plaintiff may rely upon statements made under the penalty of perjury in the

27

complaint or the opposition if (a) the complaint or opposition shows that Plaintiff has

28

personal knowledge of the matters stated and (b) Plaintiff calls to the Court’s attention
2

1

those parts of the complaint or opposition upon which Plaintiff relies; (2) Plaintiff may

2

serve and file declarations setting forth the facts which Plaintiff believes prove his

3

claims;1 (3) Plaintiff may rely upon written records but Plaintiff must prove that the

4

records are what he claims they are;2 or (4) Plaintiff may rely upon all or any part of the

5

transcript of one or more depositions, answers to interrogatories, or admissions obtained

6

in this proceeding. Should Plaintiff fail to contradict Defendants’ motion with declarations

7

or other evidence, Defendants’ evidence will be taken as truth, and final judgment may

8

be entered without a full trial. Fed. R. Civ. P. 56(e).

9

In opposing Defendants’ motion for summary judgment, Local Rule 260(b)

10

requires Plaintiff to reproduce Defendants’ itemized facts in the statement of undisputed

11

facts and admit those facts which are undisputed and deny those which are disputed. If

12

Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to support that

13

denial (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other

14

document). Local Rule 260(b).

15

4.

If discovery has not yet been opened or if discovery is still open and

16

Plaintiff is not yet able to present facts to justify the opposition to the motion, the Court

17

will consider a request to postpone consideration of Defendants’ motion. Fed. R. Civ. P.

18

56(d). Any request to postpone consideration of Defendants’ 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 (3) a

21

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

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.
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(c).

3

1

California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the

2

motions 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 1100-

4

01; Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b).

5
6
7

5.

Unsigned declarations will be stricken, and declarations not signed under

penalty of perjury have no evidentiary value.
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 Defendants’ motion for summary judgment within twenty-

13

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 days, the Court will recommend

15

dismissal of this action with prejudice for failure to obey a court order and failure

16

to prosecute.

17
18
19

IT IS SO ORDERED.
Dated:

March 31, 2018

/s/

20

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
4