Turner v. Salinas
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANTHONY R. TURNER,
No. 2: 10-cv-1848 MCE KJN P
WARDEN SALINAS, et al.,
ORDER TO SHOW CAUSE
Plaintiff is a state prisoner proceeding without counsel with a civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary
On September 2, 2011, defendants filed a reply to plaintiff’s opposition to their
summary judgment motion. Defendants’ reply contains new evidence, i.e. the declarations of
defendants Colon and Hall. Accordingly, plaintiff is granted twenty-one days from the date of
this order to file a supplemental opposition addressing this new evidence. See Provenz v. Miller,
102 F.3d 1478, 1483 (9th Cir. 1996) (“We agree with the Seventh Circuit, which held that
‘[w]here new evidence is presented in a reply to a motion for summary judgment, the district
court should not consider the new evidence without giving the [non-]movant an opportunity to
respond.’”). Defendants may file a supplemental reply within seven days thereafter.
In their summary judgment motion, defendants also argue that in failing to
respond to requests for admissions, plaintiff has admitted that defendants did not violate his
constitutional rights. See Federal Rule of Civil Procedure 36(a)(3) (a matter is admitted unless,
within thirty days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection . . .). For example, defendants argue that by
failing to respond to request for admission one (“Hall did not violate your rights under the First
Amendment”), plaintiff has admitted that defendant Hall did not violate his First Amendment
Within twenty-one days of the date of this order, plaintiff shall show cause for his
failure to respond to defendants’ request for admissions.
Accordingly, IT IS HEREBY ORDERED that within twenty-one 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 seven days thereafter; within twenty-one
days of the date of this order, plaintiff shall show cause for his failure to respond to defendants’
request for admissions.
DATED: September 6, 2011
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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