Harpool v. Beyer et al

Filing 73

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/11/2012 ORDERING that plaintiff is provided 21 days to file additional evidentiary submissions if he wishes, but it is not required. No extensions will be given.(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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GARY L. HARPOOL,
Plaintiff,

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vs.

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No. 2:10-cv-1253 MCE GGH P

M. BEYER, et al.,

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Defendants.
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ORDER

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’ motion for

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summary judgment should be granted in part and denied in part. Plaintiff was previously

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informed of the requirements to oppose summary judgment pursuant to Rand v. Rowland,

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154 F.3d 952, 957 (9th Cir. 1998). Plaintiff’s opposition was sufficient and well reasoned,

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however, in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012),

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plaintiff will be informed again.

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

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

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plaintiff is advised of the following requirements for opposing a motion for summary judgment
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made by defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion

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is a request for an order for judgment in favor of defendants without trial. A defendant’s motion

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for summary judgment will set forth the facts that the defendants contend are not reasonably

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subject 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

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

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

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

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with counter-affidavits or other admissible evidence, the defendants’ evidence may be taken as

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

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

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summary judgment, the court will consider a request to postpone considering the defendants’

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

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

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opposition to the defendants’ motion. If the defendants’ motion for summary judgment, whether

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

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

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will be stricken.

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/////

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/////
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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 11, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
harp1253.brf

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