Hendrix v. Orozco-Soria, et al.

Filing 19

ORDER Requiring Plaintiff to File Opposition to Defendant's Motion for Summary Judgment 18 ; NOTICE and WARNING as to Requirements for Opposing Defendant's Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 3/8/2018: 21-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 LAWRENCE DEE HENDRIX, III, CASE No. 1:17-cv-00750-DAD-MJS (PC) 12 Plaintiff, 13 14 15 v. OFFICER D. OROZCO-SORIA, et al., ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 18) 17 NOTICE AND WARNING AS TO REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 TWENTY-ONE (21) DAY DEADLINE 16 Defendants. 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s 22 complaint against Defendant Astorga for excessive force and medical indifference in 23 violation of the Eighth Amendment. (ECF Nos. 6, 9.) 24 25 Before the Court is Defendant Astorga’s motion for summary judgment on the grounds Plaintiff failed to exhaust administrative remedies. (ECF No. 18.) 26 Plaintiff has not filed an opposition or statement of non-opposition to Defendant’s 27 motions, and the time for doing so has passed. Local Rule 230(l). The Court will give 28 1 Plaintiff one further opportunity to respond to the motions: Plaintiff must file an opposition 2 or a statement of non-opposition to Defendant’s motion for summary judgment within 3 twenty-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 1. 9 to Local Rule 230(l). Unless otherwise ordered, all motions for summary judgment are briefed pursuant 10 2. Plaintiff is required to file an opposition or a statement of non-opposition to 11 Defendant’s 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. 17 favor of Defendant, on some or all of Plaintiff’s claims. Fed. R. Civ. P. 56(a). Defendant’s 18 motion sets forth the facts which he contends are not reasonably subject to dispute and 19 that entitle them to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the 20 statement of undisputed facts. Local Rule 260(a). A motion for summary judgment is a request for judgment without trial, and in 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 Defendant’s motion but argue that Defendant is not entitled to judgment as a matter of 24 law. In the alternative, if Plaintiff does not agree with the facts set forth in Defendant’s 25 motion, he may show that Defendant’s 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 Defendant’s motion with declarations 7 or other evidence, Defendant’s 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 Defendant’s motion for summary judgment, Local Rule 260(b) 10 requires Plaintiff to reproduce Defendant’s 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. 16 yet able to present facts to justify the opposition to the motion, the Court will consider a 17 request to postpone consideration of Defendant’s motion. Fed. R. Civ. P. 56(d). Any 18 request to postpone consideration of Defendant’s motion for summary judgment must 19 include the following: (1) a declaration setting forth the specific facts Plaintiff hopes to 20 elicit from further discovery, (2) a showing that the facts exist, and (3) a showing that the 21 facts are essential to opposing the motion for summary judgment. Blough v. Holland 22 Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); Tatum v. City and County of San 23 Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006); State of California v. Campbell, 138 If discovery has not yet been opened or if discovery is still open and Plaintiff is not 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 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motions for summary 2 judgment must identify what information is sought and how it would preclude summary 3 judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100-01; Margolis v. Ryan, 4 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 5 5. 6 of perjury have no evidentiary value. 7 6. 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 Unsigned declarations will be stricken, and declarations not signed under penalty The failure of any party to comply with this Order, the Federal Rules of Civil 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 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 8, 2018 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4

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