Solomon v. Felker et al

Filing 136

ORDER signed by Magistrate Judge Kendall J. Newman on 10/29/14 ORDERING that within thirty days from the date of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment. Failure to file an opposition will be deemed as consent to have the: (a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiffs failure to comply with these rules and a court order. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT SOLOMON,

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No. 2: 08-cv-2544 KJN P

Plaintiff,
v.

ORDER

T. FELKER, et al.,

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Defendants.

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On September 19, 2014, defendants filed a motion for summary judgment motion
pursuant to Federal Rule of Civil Procedure 56. Plaintiff has not opposed the motion.
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 . . . .” On August 26, 2010, plaintiff was advised of the requirements

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for filing an opposition to a motion and that failure to oppose such a motion may be deemed a

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waiver of opposition to the motion. In the instant order, the court re-advises plaintiff of these

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requirements.

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Local Rule 110 provides that failure to comply with the Local Rules “may be grounds for

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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” In the order filed August 26, 2010, plaintiff was also advised that failure to comply

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with the Local Rules may result in a recommendation that the action be dismissed.
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Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

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Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.

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Id.
Good cause appearing, IT IS HEREBY ORDERED that, within thirty days from the date

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of this order, plaintiff shall file an opposition, if any, to the motion for summary judgment.

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Failure to file an opposition will be deemed as consent to have the: (a) action dismissed for lack

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of prosecution; and (b) action dismissed based on plaintiff’s failure to comply with these rules

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and a court order. Such failure shall result in a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: October 29, 2014

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Sol2544.nop

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Rand Notice to Plaintiff
This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely
and adequate notice of what is required” to oppose a motion for summary judgment. See Woods
v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). The
court requires that you be provided with this notice regarding the requirements for opposing a
motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
When a defendant moves for summary judgment, the defendant is requesting that the
court grant judgment in defendant’s favor without a trial. If there is no real dispute about any fact
that would affect the result of your case, the defendant who asked for summary judgment is
entitled to judgment as a matter of law, which will end your case against that defendant. A
motion for summary judgment will set forth the facts that the defendant asserts are not reasonably
subject to dispute and that entitle the defendant to judgment.
To oppose a motion for summary judgment, you must show proof of your claims.1 To do
this, you may refer to specific statements made in your complaint if you signed your complaint
under penalty of perjury and if your complaint shows that you have personal knowledge of the
matters stated. You may also submit declarations setting forth the facts that you believe prove
your claims, as long as the person who signs the declaration has personal knowledge of the facts
stated. You may also submit all or part of deposition transcripts, answers to interrogatories,
admissions, and other authenticated documents. For each of the facts listed in the defendant’s
Statement of Undisputed Facts, you must admit the facts that are undisputed, and deny the facts
that are disputed. If you deny a fact, you must cite to the proof that you rely on to support your
denial. See L.R. 260(b). If you fail to contradict the defendant’s evidence with your own
evidence, the court may accept the defendant’s evidence as the truth and grant the motion.
The court will consider a request to postpone consideration of the defendant’s motion if
you submit a declaration showing that for a specific reason you cannot present such facts in your
opposition. If you do not respond to the motion, the court may consider your failure to act as a
waiver of your opposition. See L.R. 230(l).
If the court grants the defendant’s motion, whether opposed or unopposed, judgment will
be entered for that defendant without a trial and the case will be closed as to that defendant.

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If the motion for summary judgment concerns the exhaustion of administrative remedies, you must submit
proof of specific facts regarding the exhaustion of administrative remedies. See Stratton v. Buck, 697 F.3d 1004,
1008 (9th Cir. 2012); Albino v. Baca, 747 F.3d 1162 (9th Cir. April 3, 2014).

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