Matthew v. Lahey et al
Filing
98
ORDER AND RAND NOTICE signed by Magistrate Judge Kendall J. Newman on 07/23/12 ordering plaintiff is informed of the following requirements for opposing a motion for summary judgment. (see order for further details). Plaintiff is granted 30 days from the date of this order in which to file a supplemental opposition, if any. Plaintiff is not required to file any such supplemental opposition. Defendants' reply, if any, shall be filed within 7 days thereafter.(Plummer, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JOSEPH B. MATTHEWS,
11
12
13
14
15
16
Plaintiff,
No. 2:09-cv-2415 GEB KJN P
vs.
NURSE LAHEY, et al.,
Defendants.
ORDER AND RAND NOTICE
/
On June 11, 2012, defendants filed a motion for summary judgment. Defendants’
17
notice of motion did not include notice under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
18
1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). On July 16, 2012,
19
plaintiff filed a 22 page opposition which included six exhibits. (Dkt. No. 96.)
20
However, on July 6, 2012, the Ninth Circuit issued an order requiring that all
21
prisoners proceeding pro se must be provided contemporaneous notice of certain requirements
22
for opposing a motion for summary judgment. Woods v. Carey, 2012 WL 2626912,*1 (9th Cir.
23
July 06, 2012 ), citing Rand and Klingele. The district court may provide such notice if
24
defendants fail to do so. Woods, 2012 WL 2626912 at *5. When provided by defendant, the
25
notification must be set forth in “a separate document, served with the moving papers, and state[]
26
that the court has required that it be given.” Rand, 154 F.3d at 960; Woods, 2012 WL 2626912
1
1
at *4. These requirements apply to both “pending and future cases.” Woods at *6. Therefore,
2
the court will provide plaintiff with the notice required under Woods, and will grant plaintiff an
3
extension of time to file a supplemental opposition.1
4
IT IS HEREBY ORDERED that:
5
1. Plaintiff is hereby informed of the following requirements for opposing a
6
motion for summary judgment:
7
Rand Notice2
8
Plaintiff is informed that the following requirements apply for
opposing a motion for summary judgment pursuant to Fed. R. Civ.
P. 56. Such a motion is a request for an order for judgment in
favor of the defendant without trial. A defendant’s motion for
summary judgment will set forth the facts that the defendant
contends are not reasonably subject to dispute and that entitle the
defendant to judgment.
9
10
11
12
To oppose a motion for summary judgment, plaintiff must show
proof of his or her claims. Plaintiff may do this in one or more of
the following ways. Plaintiff may rely on plaintiff’s statements
made under penalty of perjury in the complaint if the complaint
shows that plaintiff has personal knowledge of the matters stated
and plaintiff specifies those parts of the complaint on which
plaintiff relies. Unsigned affidavits or declarations will be
stricken, and affidavits or declarations not signed under penalty of
perjury have no evidentiary value. Plaintiff may serve and file one
or more affidavits or declarations setting forth the facts that
plaintiff believes prove plaintiff’s claims; the person who signs an
affidavit or declaration must have personal knowledge of the facts
stated. Plaintiff may rely on written records, but plaintiff must
prove that the records are what plaintiff asserts they are. Plaintiff
may rely on all or any part of the transcript of one or more
depositions, answers to interrogatories, or admissions obtained in
this proceeding.
13
14
15
16
17
18
19
20
21
If plaintiff fails to contradict the defendant’s evidence with
counteraffidavits or other admissible evidence, the court may
accept defendant’s evidence as true and grant the motion. If there
22
23
1
24
25
26
Plaintiff may ask the court to re-attach his previously-submitted exhibits to any
supplemental opposition in order to avoid the expense of re-copying.
2
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
2012 WL 2626912 at *1; Rand, 154 F.3d at 957, and Klingele, 849 F.2d at 409.
2
1
is some good reason why such facts are not available to plaintiff
when required to oppose a motion for summary judgment, the
court will consider a request to postpone consideration of the
defendant’s motion. See Fed. R. Civ. P. 56(d).
2
3
If plaintiff does not serve and file a written opposition to the
motion, or a request to postpone consideration of the motion, the
court may consider the failure to act as a waiver of opposition to
the defendant’s motion. See L.R. 230(l).
4
5
6
8
If the court grants the motion for summary judgment, whether
opposed or unopposed, judgment will be entered for the defendant
without a trial and the case will be closed as to that defendant. In
the present case, summary judgment for defendant would end the
entire case.
9
2. Plaintiff is granted thirty days from the date of this order in which to file a
7
10
supplemental opposition, if any. Plaintiff is not required to file any such supplemental
11
opposition. Defendants’ reply, if any, shall be filed within seven days thereafter.
12
DATED: July 23, 2012
13
14
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
15
16
matt2415.ntc
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?