Walker v. Whitten et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/11/12 ORDERING that Plaintiff may file an amended opposition to defendants' pending motion for summary judgment no later than 8/9/2012. Any reply to plaintiff's amended opposition shall be due no later than 14 days after service of the amended opposition. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JEFFREY WALKER,
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Plaintiff,
No. 2:09-cv-0642 WBS CKD P
vs.
A. H. WHITTEN, 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 November 18, 2011.1 The
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motion arises under Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request
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for an order for judgment in favor of defendants without trial. A defendant’s motion for
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summary judgment will set forth the facts that the defendant contends are not reasonably subject
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to dispute and that entitle the defendant to judgment. To oppose a motion for summary
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judgment, plaintiff must show proof of his or her claims. Plaintiff may do this in one or more of
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the following ways. Plaintiff may rely on plaintiff’s statements made under penalty of perjury in
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Plaintiff was also advised of these requirements on September 30, 2009.
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the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated
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and plaintiff specifies those parts of the complaint on which plaintiff relies. Plaintiff may serve
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and file one or more affidavits or declarations setting forth the facts that plaintiff believes prove
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plaintiff’s claims; the person who signs an affidavit or declaration must have personal knowledge
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of the facts stated. Plaintiff may rely on written records, but plaintiff must prove that the records
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are what plaintiff asserts they are. Plaintiff may rely on all or any part of the transcript of one or
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more depositions, answers to interrogatories, or admissions obtained in this proceeding. If
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plaintiff fails to contradict the defendant’s evidence with counteraffidavits or other admissible
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evidence, the court may accept defendant’s evidence as true and grant the motion. If there is
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some good reason why such facts are not available to plaintiff when required to oppose a motion
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for summary judgment, the court will consider a request to postpone consideration of the
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defendant’s motion. See Fed. R. Civ. P. 56(d). If plaintiff does not serve and file a written
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opposition to the motion, or a request to postpone consideration of the motion, the court may
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consider the failure to act as a waiver of opposition to the defendant’s motion. See L.R. 230(l).
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If the court grants the motion for summary judgment, whether opposed or unopposed, judgment
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will be entered for the defendant 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
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 may file an amended opposition to defendants’ pending motion for
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summary judgment no later than August 9, 2012. If plaintiff fails to file an amended opposition
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by that date, defendants’ motion for summary judgment will stand submitted to the court for
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decision.
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/////
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2. Any reply to plaintiff’s amended opposition shall be due no later than 14 days
after service of the amended opposition.
Dated: July 11, 2012
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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