Mitchell v. Snowden et al

Filing 88

ORDER signed by Magistrate Judge Dale A. Drozd on 7/19/2012 ORDERING that within 14 days, plaintiff shall file an opposition to defendants' 81 motion for summary judgment in light of and in keeping with the standards set forth in this order; in the alternative, if plaintiff no longer wishes to proceed with this matter, he shall file a request to dismiss this action without prejudice pursuant to F.R.Civ.P. Rule 41(a). (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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MICHAEL JEROME MITCHELL,

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Plaintiff,

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vs.

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No. 2:08-cv-1658 JAM DAD P

SNOWDEN, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On June 8, 2012, defendants filed a motion for summary judgment in this

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action pursuant to Federal Rule of Civil Procedure 56. Plaintiff has not opposed the motion.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” In the interest of justice, however, the court will provide

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plaintiff with additional time to file his opposition or a statement of non-opposition to the motion

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for summary judgment.

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Pursuant to Woods v. Carey,

F.3d

, 2012 WL 2626912 (9th Cir. 2012),

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Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849

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F.2d 409 (9th Cir. 1988), the court hereby once again informs plaintiff of the following
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requirements for opposing a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Such

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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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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.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of

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this order, plaintiff shall file an opposition to defendants’ motion for summary judgment in light

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of and in keeping with the standards set forth above. In the alternative, if plaintiff no longer
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wishes to proceed with this matter, he shall file a request to dismiss this action without prejudice

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pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.

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DATED: July 19, 2012.

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DAD:9
mitc1658.46

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