Hayles v. Wheatherford

Filing 60

ORDER signed by Magistrate Judge John F. Moulds on 9/30/12 ORDERING that the parties shall file dispositional documents within 30 days of the date of this order.(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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TROY HAYLES,
Plaintiff,

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vs.
DR. ERICA WHEATHERFORD, et al.,
Defendants.

ORDER
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No. 2:09-cv-3061 JFM (PC)

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

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42 U.S.C. § 1983. Previously pending in this court was defendants’ motion for summary

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judgment (Doc. No. 40), which the court denied without prejudice in light of plaintiff’s claims

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that defendants were withholding documents from him (Doc. No. 53). Having resolved

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plaintiff’s discovery-related claims, and good cause appearing therefor, IT IS HEREBY

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ORDERED that:

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1. The parties shall file dispositional documents within thirty (30) days of the
date of this order;
2. Should defendants file a motion for summary judgment, then pursuant to

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Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), they shall provide the following notice to plaintiff

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at the time of service of their motion:
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Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc),
and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby informs
plaintiff of the following requirements 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. 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. 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. 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 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). 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). 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.
3. Unsigned affidavits or declarations will be stricken, and affidavits or

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declarations not signed under penalty of perjury have no evidentiary value.

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DATED: September 30, 2012.

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/014;hayl3061.jo6

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