Lees v. Felker et al

Filing 143

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/13/2012 ORDERING that plaintiff's opposition to defendants' 138 motion for summary judgment is due by 7/31/2012; any reply to plaintiff's opposition shall be due no later than 14 days after service of the opposition. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEXANDER LEES,

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Plaintiff,

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vs.

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No. 2:08-cv-0196 CKD P

T. FELKER, et al.,

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Defendants.

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ORDER
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Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, No. 09-15548

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(9th Cir. July 6, 2012), the court hereby reminds plaintiff of the following requirements for

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opposing the motion for summary judgment filed by defendants on March 30, 2012.1 (Dkt. No.

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138.) On June 27, 2012, the court granted plaintiff an additional 21 days to file and serve an

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opposition or statement of non-opposition to the motion for summary judgment. Citing its

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previous order setting forth the requirements of Rand v. Rowland, 154 3d 952, 957 (9th Cir.

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1998) (en banc), the court observed that plaintiff had yet to file an opposition that complied with

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Rand. (Dkt. No. 142, citing Dkt. No. 16.)

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Defendants’ summary judgment motion arises under Rule 56 of the Federal Rules

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Plaintiff was also advised of these requirements on July 25, 2008. (Dkt. No. 16.)
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of Civil Procedure. Such a motion is a request for an order for judgment in favor of the

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defendant without trial. A defendant’s motion for summary judgment will set forth the facts that

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the defendant contends are not reasonably subject to dispute and that entitle the defendant to

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judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her

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claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely on

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plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows that

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plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of the

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complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or

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declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who

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signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may

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rely on written records, but plaintiff must prove that the records are what plaintiff asserts they

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are. Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to

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interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the

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

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defendant’s evidence as true and grant the motion. If there is some good reason why such facts

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are not available to plaintiff when required to oppose a motion for summary judgment, the court

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will consider a request to postpone consideration of the defendant’s motion. See Fed. R. Civ. P.

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56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to

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postpone consideration of the motion, the court may consider the failure to act as a waiver of

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opposition to the defendant’s motion. See L.R. 230(l). If the court grants the motion for

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summary judgment, whether opposed or unopposed, judgment will be entered for the defendant

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without a trial and the case will be closed as to that defendant.

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Unsigned affidavits or declarations will be stricken, and affidavits or declarations

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not signed under penalty of perjury have no evidentiary value.

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Plaintiff now having received the notice required under Woods v. Carey, No. 0915548 (9th Cir. July 6, 2012), IT IS HEREBY ORDERED that:

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1. Plaintiff’s opposition to defendants’ March 30, 2012 motion for summary

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judgment is due by July 31, 2012. Failure to file an opposition by July 31, 2012 will result in a

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recommendation that this action be dismissed under Federal Rule of Civil Procedure 41(b).

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2. Any reply to plaintiff’s opposition shall be due no later than 14 days after

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service of the opposition.
Dated: July 13, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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