Cohea v. Pliler, et al

Filing 222

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/3/12 ORDERING that within 21 days of the date of this order, plaintiff shall submit a verification, signed under penalty of perjury, attesting that the pleadings or other filings upon which he relies in opposing defendants motions are based on personal knowledge. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,
Plaintiff,

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No. 2:00-cv-2799 GEB EFB P

vs.

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CHERYL K. PLILER, WARDEN, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The remaining defendants in this case, i.e, Adams, Akin, Baughman, Colvin,

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Gold, McCargar, Micheels, Rendon, Scarsella, and Yamamoto move for summary judgment

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under Fed. R. Civ. P. 56. Dckt. No. 213. Defendants also ask the court to find that plaintiff is a

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vexatious litigant and require that he post security. Dckt. No. 217. It is apparent from plaintiff’s

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opposition, which he has titled “Affidavit,” that he believes that his assertions therein, as well as

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those in his second and third amended complaints (Docket Nos. 26 & 122), constitute evidence.

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Dckt. No. 208 at 1, footnote. However, none of those documents is verified; that is, none contain

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language asserting that the declaration or statement by plaintiff is made from personal

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knowledge and under penalty of perjury. Instead they are simply signed, “Respectfully

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submitted.”
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Under Federal Rule of Evidence 603, an oath or affirmation must be provided for

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plaintiff’s submissions to be admissible. While this defect is significant, it is curable.

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Accordingly, within 21 days of the date of this order, plaintiff shall submit a verification, signed

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under penalty of perjury, attesting that the pleadings or other filings upon which he relies in

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opposing defendants’ motions are based on personal knowledge. If plaintiff fails to submit a

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verification, he will face possible summary adjudication of any claim for which evidence

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contained solely within those pleadings and/or filings is needed to raise a triable issue of material

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fact.

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Dated: December 3, 2012.

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