Baker et al v. Cameron et al

Filing 57

ORDER signed by Magistrate Judge Kendall J. Newman on 5/10/2012 ORDERING the clerk to send plaintiff a copy of defendants' 52 motion for summary judgment; and on or before 6/11/2012, plaintiff shall file an opposition to defendants' motion that complies with the F.R.Civ.P. and the Local Rules. (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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JERRY W. BAKER,

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Plaintiff,

No. 2:10-cv-1811 KJM KJN P

vs.

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SOLANO COUNTY, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel. On December 5, 2011,

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defendants filed a motion for summary judgment. Plaintiff failed to timely file an opposition to

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the motion, and on January 12, 2012, plaintiff was directed to file an opposition within thirty

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days, and that failure to file an opposition would be deemed as consent to have the pending

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motion granted. On January 25, 2012, plaintiff filed a one page document styled, “Motion to

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Oppose Summary Judgment Request Case Docket.” (Dkt. No. 55.) Plaintiff claims:

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(1) he has not lived at 993 Fallsgrove Way since October or early November; (2) he was arrested

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on December 9, [2011], and informed the court of his change of address on or about December

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14, 2011; (3) he does “oppose the defendants’ motion for summary judgment” and wants a trial

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based on the complaint; and (4) requests a copy of the docket sheet and all motions filed from

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November 2011, to January 1, 2012. (Id.)
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On January 27, 2012, defendants filed a reply. Defendants point out that the

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docket does not reflect a notice of change of address from the Falls Grove address. Defendants

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argue that plaintiff ignores the requirements of Rule 56 regarding an opposition to a summary

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judgment motion because he failed to provide any evidence, failed to comply with Local Rule

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260(b), and his opposition consists of one unverified sentence. Defendants also note that

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plaintiff essentially filed the same opposition here as he did in opposition to the motion for

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summary judgment filed in Baker v. Smith, 2:12-cv-1208 GEB KJN P, which “repetition of this

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type of opposition is an affront both to the court and to the defendants.” (Dkt. No. 56 at 2.)

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Although plaintiff’s allegations are held to “less stringent standards than formal

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pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff

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is required to comply with the Federal Rules of Civil Procedure and the Local Rules of the

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Eastern District of California. See McNeil v. United States, 508 U.S. 106, 113 (1993)

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(procedural requirements apply to all litigants, including prisoners lacking access to counsel);

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L.R. 183(a) (“Any individual representing himself or herself without an attorney is bound by the

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Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.”). On

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November 10, 2010, plaintiff was advised of the requirements for opposing a motion for

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summary judgment. (Dkt. No. 15 at 4.) In attempting to establish the existence of a factual

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dispute to defeat a summary judgment motion, the opposing party may not rely upon the

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allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

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form of affidavits, and/or admissible discovery material in support of its contention that the

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dispute exists. See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

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U.S. 574, 586 n.11 (1986).

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Plaintiff’s filings in this action are comparable to those filed in Case No. 2:12-cv-

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1208, in that defendants had difficulty obtaining discovery responses from plaintiff, and both

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oppositions to motions for summary judgment were unverified and failed to comply with the

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Federal Rules of Civil Procedure and the Local Rules of the Eastern District.
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However, the procedural posture of this case differs from the posture of Case No.

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2:12-cv-1208, because in the latter case, the motion was fully briefed prior to plaintiff’s re-arrest.

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Here, it appears plaintiff was arrested shortly after the filing of the motion for summary

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judgment. While that situation does not excuse plaintiff’s failure to comply with the Federal

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Rules of Civil Procedure and this court’s Local Rules, the court will order the Clerk of Court to

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send plaintiff a copy of the motion and allow plaintiff one final opportunity to file an opposition.

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Plaintiff is cautioned, however, that no further extensions of time will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to send plaintiff a copy of defendants’

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December 5, 2011 motion for summary judgment (dkt. no. 52); and

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2. On or before June 11, 2012, plaintiff shall file an opposition to defendants’

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motion for summary judgment that complies with the Federal Rules of Civil Procedure and the

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Local Rules of the Eastern District. Failure to file an opposition consistent with this order will be

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deemed as consent to have the (a) pending motion granted; (b) action dismissed for lack of

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prosecution; and (c) action dismissed based on plaintiff’s failure to comply with these rules and a

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court order, as more specifically set forth in the January 12, 2012 order.

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DATED: May 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bake1811.eot

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