Quillar v. CA Dept Corrections, et al

Filing 141

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/11/12 ORDERING that plaintiff will be provided 21 days to file additional evidentiary materials regarding defendants motion for summary judgment, but it is not required. No extensions will be given.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE V. QUILLAR,

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Plaintiff,

Defendants.

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No. 2:04-cv-1203 KJM CKD P

ORDER

vs.
CDCR, et al.,

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Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, Nos. 09-15548,

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09-16113, 2012 WL 2626912 (9th Cir. July 6, 2012), the court hereby reminds plaintiff of the

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following requirements for opposing the motion for summary judgment filed by the defendant on

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March 29, 2012.1 Plaintiff has filed an opposition to the motion for summary judgment. (See

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Dkt. Nos. 133-135.) The motion arises under Rule 56 of the Federal Rules of Civil Procedure.

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Such a motion is a request for an order for judgment in favor of the defendant without trial. A

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defendant’s motion for summary judgment will set forth the facts that the defendant contends are

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not reasonably subject to dispute and that entitle the defendant to judgment. To oppose a motion

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for summary judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in

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Plaintiff was also advised of these requirements on September 27, 2006. (See Dkt. No.

51.)
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one or more of the following ways. Plaintiff may rely on plaintiff’s statements made under

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penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge

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of the matters stated and plaintiff specifies those parts of the complaint on which plaintiff relies.

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Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that

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plaintiff believes prove plaintiff’s claims; the person who signs an affidavit or declaration must

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have personal knowledge of the facts stated. Plaintiff may rely on written records, but plaintiff

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must prove that the records are what plaintiff asserts they are. Plaintiff may rely on all or any

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part of the transcript of one or more depositions, answers to interrogatories, or admissions

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obtained in this proceeding. If plaintiff fails to contradict the defendant’s evidence with

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counteraffidavits or other admissible evidence, the court may accept defendant’s evidence as true

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and grant the motion. If there is some good reason why such facts are not available to plaintiff

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when required to oppose a motion for summary judgment, the court will consider a request to

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postpone consideration of the defendant’s motion. See FED . R. CIV . P. 56(d). If plaintiff does

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not serve and file a written opposition to the motion, or a request to postpone consideration of the

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motion, the court may consider the failure to act as a waiver of opposition to the defendant’s

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motion. See L.R. 230(l). If the court grants the motion for summary judgment, whether opposed

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or unopposed, judgment will be entered for the defendant without a trial and the case will be

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closed as to that defendant. Unsigned affidavits or declarations will be stricken, and affidavits or

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declarations not signed under penalty of perjury have no evidentiary value.

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Plaintiff now having received the notice required under Woods, 2012 WL

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2626912, IT IS HEREBY ORDERED that plaintiff will be provided 21 days to file additional

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evidentiary materials regarding defendant’s motion for summary judgment, but it is not required.

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No extensions will be given.

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Dated: July 11, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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