Abreu v. Cate et al

Filing 47

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/17/12 ORDERING that plaintiff will be provided 21 days to file additional evidentiary materials regarding defendants motion for summary judgment, but it is not required. No extensions will be given. (Dillon, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLIFFORD ABREU, 11 Plaintiff, 12 13 No. 2:10-cv-1621 JAM CKD P vs. MATTHEW L. CATE, et al., 14 Defendants. 15 ORDER / 16 Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, Nos. 09-15548, 17 09-16113, – F.3d. –, 2012 WL 2626912 (9th Cir. July 6, 2012), the court hereby reminds plaintiff 18 of the following requirements for opposing the motion for summary judgment filed by the 19 defendants on November 15, 2011.1 Plaintiff has filed an opposition to the motion for summary 20 judgment. (See Dkt. No. 41-43.) The motion arises under Rule 56 of the Federal Rules of Civil 21 Procedure. Such a motion is a request for an order for judgment in favor of the defendant 22 without trial. A defendant’s motion for summary judgment will set forth the facts that the 23 defendant contends are not reasonably subject to dispute and that entitle the defendant to 24 judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her 25 1 26 Plaintiff was also advised of these requirements on January 21, 2011. (See Dkt. No. 14.) 1 1 claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely on 2 plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows that 3 plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of the 4 complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or 5 declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who 6 signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may 7 rely on written records, but plaintiff must prove that the records are what plaintiff asserts they 8 are. Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to 9 interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the 10 defendant’s evidence with counteraffidavits or other admissible evidence, the court may accept 11 defendant’s evidence as true and grant the motion. If there is some good reason why such facts 12 are not available to plaintiff when required to oppose a motion for summary judgment, the court 13 will consider a request to postpone consideration of the defendant’s motion. See FED . R. CIV . P. 14 56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to 15 postpone consideration of the motion, the court may consider the failure to act as a waiver of 16 opposition to the defendant’s motion. See L.R. 230(l). If the court grants the motion for 17 summary judgment, whether opposed or unopposed, judgment will be entered for the defendant 18 without a trial and the case will be closed as to that defendant. Unsigned affidavits or 19 declarations will be stricken, and affidavits or declarations not signed under penalty of perjury 20 have no evidentiary value. 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 2 1 Plaintiff now having received the notice required under Woods, 2012 WL 2 2626912, IT IS HEREBY ORDERED that plaintiff will be provided 21 days to file additional 3 evidentiary materials regarding defendants’ motion for summary judgment, but it is not required. 4 No extensions will be given. 5 Dated: July 17, 2012 6 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 7 abre1621.not 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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