Birdwell et al v Cates et al

Filing 93

ORDER signed by Magistrate Judge Gregory G. Hollows on 07/10/12 ordering that plaintiff will be provided 21 days to file additional evidentiary submissions if he wishes, but is not required. No extensions will be given. (Plummer, 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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BILLY PAUL BIRDWELL, II,

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Plaintiff,

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vs.

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No. 2:10-cv-0719 KJM GGH P

M. CATES, et al.,

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ORDER

Defendants.
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Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C.

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§ 1983. Findings and recommendations are currently pending that defendants’ motions for

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summary judgment should be granted. Plaintiff was previously informed of the requirements to

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oppose summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998).

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Plaintiff’s opposition was sufficient and well reasoned, however, in light of Woods v. Carey, ---

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F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), plaintiff will be informed again.

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

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denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff

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is advised of the following requirements for opposing a motion for summary judgment made by

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defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a

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request for an order for judgment in favor of defendants without trial. A defendant’s motion for
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summary judgment will set forth the facts that the defendants contend are not reasonably subject

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to dispute and that entitle the defendants 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 upon statements made under the penalty of perjury in the

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complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and

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plaintiff calls to the court’s attention those parts of the complaint upon which plaintiff relies.

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Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that

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plaintiff believes prove plaintiff’s claims; the person who signs an affidavit or declaration must

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have personal knowledge of the facts stated. Plaintiff may rely upon written records, but plaintiff

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must prove that the records are what plaintiff claims they are. Plaintiff may rely upon all or any

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part of the transcript of one or more depositions, answers to interrogatories, or admissions

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obtained in this proceeding. If plaintiff fails to contradict the defendants’ evidence with

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counteraffidavits or other admissible evidence, the defendants’ evidence may be taken as the

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truth and the defendants’ motion for summary judgment granted. If there is some good reason

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why such facts are not available to plaintiff when required to oppose a motion for summary

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judgment, the court will consider a request to postpone considering the defendants’ motion. If

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plaintiff does not serve and file a written opposition to the motion or a request to postpone

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

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the defendants’ motion. If the defendants’ motion for summary judgment, whether opposed or

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unopposed, is granted, judgment will be entered for the defendants without a trial and the case

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will be closed. A motion or opposition supported by unsigned affidavits or declarations will be

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stricken.

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Plaintiff will be provided 21 days to file additional evidentiary submissions if he

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wishes regarding the motions for summary judgment, but it is not required. No extensions will

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be given.

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Accordingly, IT IS HEREBY ORDERED that plaintiff will be provided 21 days

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to file additional evidentiary submissions if he wishes, but it is not required. No extensions will

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be given.

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DATED: July 10, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
bird0719.brf

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