Jordan v. Veal et al

Filing 24

ORDER signed by Senior Judge Howard D. McKibben on 8/11/09: Defendants' motion to dismiss is converted to a motion for summary judgment. Defendants shall have up to and including August 27, 2009, in which to supplement their motion with evidence relevant to the issues presented. Plaintiff shall have up to and including September 28, 2009, in which to file an opposition and any additional evidence he has to support his claims. Any reply by the defendants shall be filed by October 15, 2009. (Kaminski, H)

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It appears from the record that defendants S. Stanley and M. Fisher have not been served. (See Docket #17).
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

TYRONE JORDAN,

) ) Plaintiff, ) ) vs. ) ) M. VEAL, et al., ) ) Defendants. ) _________________________________ )

2:07-cv-00854-HDM-RAM ORDER

Plaintiff is a state prisoner proceeding pro se.

Pursuant to

the court's screening orders, this action is proceeding against defendants V. Cullen, R. Perez, R. St. Germain, S. Moreno, R. Anderson, E. Arnold, L. Jensen, M. Fisher, J. Purtee, S. Stanley, T. Ehlers, and W. Fisher. Defendants W. Fisher, Perez, St.

Germaine, Moreno, Jensen, Purtee, Arnold, Anderson, Ehlers, and Cullen have executed waivers of service of process.1 On July 13,

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2009, they filed a motion to dismiss plaintiff's complaint for failure to state a claim (#18). Plaintiff opposed the motion

(#21), and defendants replied (#23). The documents attached to plaintiff's complaint, and referenced by defendants in their motion to dismiss, largely refute plaintiff's claims. However, the court believes this case should Accordingly, the court hereby

be resolved on summary judgment.

converts defendants' motion to dismiss (#18) to a motion for summary judgment. Defendants shall have up to and including August

27, 2009, in which to supplement the motion with any additional documents relevant to the issues presented. The plaintiff shall

thereafter have until September 28, 2009, to respond by appending any affidavits or other documents he has to support his claims in addition to what he may have already filed with the court. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following requirements for opposing a motion for summary judgment made by defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order A defendant's

for judgment in favor of defendants without trial.

motion for summary judgment will set forth the facts that the defendants contend are not reasonably subject to dispute and that entitle the defendants to judgment. To oppose a motion for summary

judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has 2

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personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one or more affidavits or

declarations setting forth the facts that plaintiff believes prove plaintiff's claims; the person who signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may rely upon written records, but plaintiff must prove that the records are what plaintiff claims they are. Plaintiff may

rely upon all or any part of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the defendants'

evidence with counteraffidavits or other admissible evidence, the defendants' evidence may be taken as the truth and the defendants' motion for summary judgment granted. If there is some good reason

why such facts are not available to plaintiff when required to oppose a motion for summary judgment, the court will consider a request to postpone considering the defendants' motion. If

plaintiff does not serve and file a written opposition to the motion or a request to postpone consideration of the motion, the court may consider the failure to act as a waiver of opposition to the defendants' motion. If the defendants' motion for summary

judgment, whether opposed or unopposed, is granted, judgment will be entered for the defendants without a trial and the case will be closed. A motion or opposition supported by unsigned affidavits or declarations will be stricken. Accordingly, IT IS HEREBY ORDERED that defendants' motion to dismiss is converted to a motion for summary judgment. 3 Defendants

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shall have up to and including August 27, 2009, in which to supplement their motion with evidence relevant to the issues presented. Plaintiff shall have up to and including September 28,

2009, in which to file an opposition and any additional evidence he has to support his claims. filed by October 15, 2009. DATED: This 11th day of August, 2009. Any reply by the defendants shall be

____________________________ UNITED STATES DISTRICT JUDGE

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