Lyons v. Folsom Mercy Hospital

Filing 69

ORDER signed by Magistrate Judge Kendall J. Newman on 4/3/2013 INFORMING plaintiff of the requirements for opposing a motion for summary judgment; within 30 days, plaintiff may file an opposition to defendants' 57 motion for summary judgme nt in accordance to this order or a statement that plaintiff chooses to rely on his previously-filed opposition and exhibits; within 7 days after the date of service of the opposition, defendants may file and serve: (a) a new comprehensive reply to plaintiff's opposition; (b) a supplemental reply; or (c) a statement that defendants choose to rely on their previously-filed reply. (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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BART LYONS,

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Plaintiff,

No. 2:11-cv-0268 GEB KJN P

vs.
FOLSOM MERCY HOSPITAL, et al.,

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Defendants.

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

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filed pursuant to 42 U.S.C. § 1983. Presently pending is defendants’ motion for summary

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judgment, which is now fully briefed by the parties. However, pursuant to the Ninth Circuit’s

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decision in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), it is necessary to provide

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contemporaneous notice to plaintiff of the requirements for opposing a motion for summary

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judgment.

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The Ninth Circuit requires that pro se prisoner plaintiffs be provided notice of the

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requirements for opposing a motion for summary judgment “at the time the defendants’ motions

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are filed.” Woods, 684 F.3d at 936, 939, citing Rand v. Rowland, 154 F.3d 952, (9th Cir. 1998)

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(en banc); see also Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). The district

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court may provide such notice if defendants fail to do so. Woods, 684 F.3d at 940. When
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provided by defendant, the notification must be set forth in “a separate document, served with the

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moving papers, and state[] that the court has required that it be given.” Rand, 154 F.3d at 960;

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Woods, 684 F.3d at 938-39. The Ninth Circuit held that these requirements apply to both

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“pending and future cases.” Id., at 941.

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In the present case, defendants filed a motion for summary judgment without

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providing the requisite notice to plaintiff. (See Dkt. Nos. 57-63.) Plaintiff opposed the motion,

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and defendant filed a reply. (Dkt. Nos. 65, 66.) In light of Woods, this court finds it necessary to

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contemporaneously notify plaintiff of the requirements for opposing the motion, as set forth

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below.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff is hereby informed of the following requirements for opposing a

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motion for summary judgment:
Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v.
Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the following
requirements apply for opposing a motion for summary judgment
pursuant to Fed. R. Civ. P. 56. Such a motion is a request for an
order for judgment in favor of the defendant without trial. A
defendant’s motion for summary judgment will set forth the facts
that the defendant contends are not reasonably subject to dispute
and that entitle the defendant to judgment.
To oppose a motion for summary judgment, plaintiff must show
proof of his or her claims. Plaintiff may do this in one or more of
the following ways. Plaintiff may rely on plaintiff’s statements
made under penalty of perjury in the complaint if the complaint
shows that plaintiff has personal knowledge of the matters stated
and plaintiff specifies those parts of the complaint on which
plaintiff relies. Unsigned affidavits or declarations will be
stricken, and affidavits or declarations not signed under penalty of
perjury have no evidentiary value. Plaintiff may serve and file one
or more affidavits or declarations setting forth the facts that
plaintiff believes prove plaintiff’s claims; the person who signs an
affidavit or declaration must have personal knowledge of the facts
stated. Plaintiff may rely on written records, but plaintiff must
prove that the records are what plaintiff asserts they are. Plaintiff
may rely on all or any part of the transcript of one or more
depositions, answers to interrogatories, or admissions obtained in
this proceeding.
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If plaintiff fails to contradict the defendant’s evidence with
counteraffidavits or other admissible evidence, the court may
accept defendant’s evidence as true and grant the motion. If there
is some good reason why such facts are not available to plaintiff
when required to oppose a motion for summary judgment, the
court will consider a request to postpone consideration of the
defendant’s motion. See Fed. R. Civ. P. 56(d).

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If plaintiff does not serve and file a written opposition to the
motion, or a request to postpone consideration of the motion, the
court may consider the failure to act as a waiver of opposition to
the defendant’s motion. See L.R. 230(l).

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If the court grants the motion for summary judgment, whether
opposed or unopposed, judgment will be entered for the defendant
without a trial and the case will be closed as to that defendant. In
the present case, summary judgment for defendant would end the
entire case.

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2. Within thirty days after service of this order, plaintiff may file an opposition to

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defendants’ motion for summary judgment, Local Rule 230(l), by filing and serving: (a) a new

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comprehensive opposition to the motion, including all pertinent exhibits; (b) a supplemental

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opposition, and any new exhibits; OR (c) a statement that plaintiff chooses to rely on his

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previously-filed opposition and exhibits.

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3. Within seven days after the date of service of the opposition, defendants may

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file and serve: (a) a new comprehensive reply to plaintiff’s opposition; (b) a supplemental reply;

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or (c) a statement that defendants choose to rely on their previously-filed reply.

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DATED: April 3, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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lyon0268.rand

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