Hunt v. Fields

Filing 55

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/11/2012 ORDERING that plaintiff shall have 21 days to supplement his opposition, if he chooses to do so. No extensions shall be provided.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL A. HUNT,
Plaintiff,

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No.2: 09-cv-3525 KJM GGH P

Defendant.

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ORDER

vs.
D. FIELDS,

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On December 19, 2011, defendant D. Fields filed a motion a motion for summary

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judgment pursuant to Fed. R. Civ. P. 56. Plaintiff was previously informed of the requirements

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for opposing a motion for summary judgment, see Doc. No. 9, and has in fact filed opposition to

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the motion. See Doc. No. 51. However, in light of the recent decision of the Court of Appeals

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for the Ninth Circuit in Woods v. Carey, – F.3d –, 2012 WL 2626912 (9th Cir. July 6, 2012), the

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court will again inform plaintiff of the requirements for opposing a motion for summary

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judgment pursuant to Fed. R. Civ. P. 56, as articulated in Rand v. Rowland, 154 F.3d 952, 957

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(9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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A motion for summary judgment made pursuant to Fed. R. Civ. P. 56 is a request
for an order for judgment in favor of the defendant 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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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

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knowledge of the facts stated. Plaintiff may rely on written records, but plaintiff must prove that

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the records are what plaintiff asserts they are. Plaintiff may rely on all or any part of the

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transcript of one or more depositions, answers to interrogatories, or admissions obtained in this

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proceeding. If plaintiff fails to contradict the defendant’s evidence with counter-affidavits or

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other admissible evidence, the court may accept defendant’s evidence as true and grant the

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motion. If there is some good reason why such facts are not available to plaintiff when required

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to oppose a motion for summary judgment, the court will consider a request to postpone

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consideration of the defendant’s motion. See Fed. R. Civ. P. 56(d). If plaintiff does not serve

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

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the court may consider the failure to act as a waiver of opposition to the defendant’s motion. See

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L.R. 230(l). If the court grants the motion for summary judgment, whether opposed or

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unopposed, judgment will be entered for the defendant without a trial and the case will be closed

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as to that defendant. 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.
In light of this notice, plaintiff may wish to supplement his previously-filed

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opposition, though he is not required to do so. Plaintiff will be provided with 21 days within

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which to file any additional submissions, if he chooses to do so. No extensions will be provided.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff shall have 21 days from

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the filing date of this order to supplement his opposition, if he chooses to do so. No extensions

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shall be provided.

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DATED: July 11, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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hunt3525.rand

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