Watts v. Ramos, et al

Filing 61

ORDER signed by Magistrate Judge Craig M. Kellison on 7/17/12 ORDERING that plaintiff may file a supplemental opposition to defendants motion for summary judgment within 30 days of the date of this order; and defendant may file a supplemental reply within 15 days after service of any supplemental opposition. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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No. 2:09-CV-1515-KJM-CMK-P

Plaintiff,

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vs.

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R. RAMOS, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983.

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On September 8, 2011, defendants filed a motion for summary judgment. That

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motion was not, however, accompanied by a contemporaneous notice to plaintiff advising him as

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to his obligations in opposing a motion for summary judgment. The court will now provide that

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notice and also provide plaintiff an opportunity to file a supplemental opposition in light of this

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notice. Defendants will also be permitted to file a supplemental reply. If no supplemental

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opposition is filed within the time provided herein, the matter will stand submitted on the current

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record.

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

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following

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requirements for opposing a motion for summary judgment made by defendants pursuant to Rule

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56 of the Federal Rules of Civil Procedure: Such a motion is a request for an order for judgment

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in favor of defendants without trial. A defendant’s motion for summary judgment will set forth

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the facts that the defendants contend are not reasonably subject to dispute and that entitle the

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defendants to judgment. To oppose a motion for summary judgment, plaintiff must show proof

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of his or her claims. Plaintiff may do this in one or more of the following ways. Plaintiff may

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rely upon statements made under the penalty of perjury in the complaint if the complaint shows

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that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court’s

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attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one

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or more affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff’s

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claims; the person who signs an affidavit or declaration must have personal knowledge of the

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facts stated. Plaintiff may rely upon written records, but plaintiff must prove that the records are

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what plaintiff claims they are. Plaintiff may rely upon 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 defendants’ evidence with counteraffidavits or other admissible

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evidence, the defendants’ evidence may be taken as the truth and the defendants’ motion for

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summary judgment granted. If there is some good reason why such facts are not available to

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plaintiff when required to oppose a motion for summary judgment, the court will consider a

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request to postpone considering the defendants’ motion. If plaintiff does not serve and file a

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written opposition to the motion or a request to postpone consideration of the motion, the court

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may consider the failure to act as a waiver of opposition to the defendants’ motion. If the

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defendants’ motion for summary judgment, whether opposed or unopposed, is granted, judgment

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will be entered for the defendants without a trial and the case will be closed.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff may file a supplemental opposition to defendant’s motion for

summary judgment within 30 days of the date of this order; and
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Defendant may file a supplemental reply within 15 days after service of

any supplemental opposition.

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DATED: July 17, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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