Turner v. Salinas

Filing 76

ORDER AND ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 09/06/11 ordering that within 21 days of the date of this order, plaintiff may file a supplemental opposition to defendants' summary judgment motion; defendants may file a supplemental reply within 7 days thereafter; within 21 days of the date of this order, plaintiff shall show cause for his failure to respond to defendants' request for admissions. (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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ANTHONY R. TURNER,

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Plaintiff,

No. 2: 10-cv-1848 MCE KJN P

vs.
WARDEN SALINAS, et al.,

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Defendants.

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ORDER AND
/

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ORDER TO SHOW CAUSE

Plaintiff is a state prisoner proceeding without counsel with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary

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judgment.

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On September 2, 2011, defendants filed a reply to plaintiff’s opposition to their

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summary judgment motion. Defendants’ reply contains new evidence, i.e. the declarations of

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defendants Colon and Hall. Accordingly, plaintiff is granted twenty-one days from the date of

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this order to file a supplemental opposition addressing this new evidence. See Provenz v. Miller,

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102 F.3d 1478, 1483 (9th Cir. 1996) (“We agree with the Seventh Circuit, which held that

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‘[w]here new evidence is presented in a reply to a motion for summary judgment, the district

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court should not consider the new evidence without giving the [non-]movant an opportunity to

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respond.’”). Defendants may file a supplemental reply within seven days thereafter.
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In their summary judgment motion, defendants also argue that in failing to

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respond to requests for admissions, plaintiff has admitted that defendants did not violate his

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constitutional rights. See Federal Rule of Civil Procedure 36(a)(3) (a matter is admitted unless,

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within thirty days after being served, the party to whom the request is directed serves on the

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requesting party a written answer or objection . . .). For example, defendants argue that by

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failing to respond to request for admission one (“Hall did not violate your rights under the First

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Amendment”), plaintiff has admitted that defendant Hall did not violate his First Amendment

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rights.

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Within twenty-one days of the date of this order, plaintiff shall show cause for his
failure to respond to defendants’ request for admissions.

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Accordingly, IT IS HEREBY ORDERED that within twenty-one days of the date

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of this order, plaintiff may file a supplemental opposition to defendants’ summary judgment

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motion; defendants may file a supplemental reply within seven days thereafter; within twenty-one

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days of the date of this order, plaintiff shall show cause for his failure to respond to defendants’

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request for admissions.

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DATED: September 6, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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