Ortiz v. Cox et al

Filing 35

ORDER signed by Magistrate Judge John F. Moulds on 8/9/2012, ORDERING that the 34 findings and recommendations are VACATED; defendant's 22 motion for summary judgment is DENIED without prejudice to its renewal within 30 days ; plaintiff's opposition to any renewed motion due no later than 30 days after service of the renewed motion; and defedant's reply brief, if any, due no later than 14 days after service of plaintiff's opposition. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

ROMAN ORTIZ,
Plaintiff,

ORDER

vs.

12
13

No. 2:10-cv-0351 KJM JFM (PC)

Defendants.

11

COX, et al.,

14

/

15
16

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

17

42 U.S.C. § 1983. On July 15, 2011, defendant filed a motion for summary judgment. Plaintiff

18

opposed the motion, and on April 2, 2012, this court issued findings and recommendations

19

recommending that the motion be granted. In light of the July 6, 2012 decision of the United

20

States Court of Appeals for the Ninth Circuit in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012),

21

and good cause appearing, the findings and recommendations will be vacated and defendant’s

22

motion will be denied without prejudice to its renewal within thirty days from the date of this

23

order.

24

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

25

banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby once again

26

informs plaintiff of the following requirements for opposing a motion for summary judgment
1

1

pursuant to Fed. R. Civ. P. 56.1 Such a motion is a request for an order for judgment in favor of

2

the defendant without trial. A defendant’s motion for summary judgment will set forth the facts

3

that the defendant contends are not reasonably subject to dispute and that entitle the defendant to

4

judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her

5

claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely on

6

plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows that

7

plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of the

8

complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or

9

declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who

10

signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may

11

rely on written records, but plaintiff must prove that the records are what plaintiff asserts they

12

are. Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to

13

interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the

14

defendant’s evidence with counteraffidavits or other admissible evidence, the court may accept

15

defendant’s evidence as true and grant the motion. If there is some good reason why such facts

16

are not available to plaintiff when required to oppose a motion for summary judgment, the court

17

will consider a request to postpone consideration of the defendant’s motion. See Fed. R. Civ. P.

18

56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to

19

postpone consideration of the motion, the court may consider the failure to act as a waiver of

20

opposition to the defendant’s motion. See L.R. 230(l). If the court grants the motion for

21

summary judgment, whether opposed or unopposed, judgment will be entered for the defendant

22

without a trial and the case will be closed as to that defendant.

23

In accordance with the above, IT IS HEREBY ORDERED that:

24

1. The findings and recommendations filed April 2, 2012 are vacated;

25
26

1

Plaintiff was informed of these requirements in an order filed October 18, 2010.
2

1
2

2. Defendant’s July 15, 2011 motion for summary judgment is denied without
prejudice to its renewal within thirty days from the date of this order;

3

3. Should defendant choose to renew the motion for summary judgment, he shall

4

serve on plaintiff all documents filed as part of the renewed motion or relied on to support the

5

motion;

6
7

4. Plaintiff’s opposition to any renewed motion shall be filed and served not later
than thirty days after service of the renewed motion; and

8
9
10

5. Defendant’s reply brief, if any, shall be filed and served not later than fourteen
days after service of plaintiff’s opposition.
DATED: August 9, 2012.

11
12
13
14

/014;orti0351.ntc

15
16
17
18
19
20
21
22
23
24
25
26
3