Brown v. Wheeler et al

Filing 51

ORDER signed by Magistrate Judge Dale A. Drozd on 07/30/12 granting 50 Motion for supplemental briefing. Within 30 days from the date of this order, plaintiff may file a supplemental opposition to defendants' 03/30/12 motion for summary judgment. Defendants are granted 15 days from the date of service of any supplemental opposition to file a supplemental reply brief. (Plummer, M) Modified on 7/31/2012 (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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RICKY L. BROWN,

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Plaintiff,

No. 2:11-cv-0389 GEB DAD P

vs.

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IGI C/O WHEELER, et al.,

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Defendants.

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ORDER
/

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On March 30, 2012, defendants filed a motion for summary judgment in this

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action pursuant to Federal Rule of Civil Procedure 56. After receiving an extension of time to do

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so, on May 29, 2012, plaintiff filed an opposition to the motion. On June 4, 2012, defendants

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filed a reply brief.

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On July 25, 2012, defendants filed a motion for supplemental briefing.

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Defendants’ motion is predicated on the recent decision in Woods v. Carey,

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2626912 (9th Cir. July 6, 2012), which holds that notice of requirements necessary to oppose a

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motion for summary judgment must be provided to pro se prisoner plaintiff at the time such

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motions are filed. Defendants have provided with the instant motion the notice attached as

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Appendix A to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1988) (en banc).
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F.3d

, 2012 WL

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Good cause appearing, defendants’ motion will be granted. In addition to the

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notice provided by defendants with their motion, pursuant to Woods v. Carey, supra, Rand v.

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Rowland, supra, and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby once

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again informs plaintiff of the following requirements for opposing a motion for summary

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judgment pursuant to Fed. R. Civ. P. 56.1 Such a motion is a request for an order for judgment in

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favor of the defendant without trial. A defendant’s motion for summary judgment will set forth

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the facts that the defendant contends are not reasonably subject to dispute and that entitle the

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defendant to judgment. To oppose a motion for summary judgment, plaintiff must show proof of

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his or her claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely

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on plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows

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that plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of

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the complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or

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declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who

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signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may

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rely on written records, but plaintiff must prove that the records are what plaintiff asserts they

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are. Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to

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interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the

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defendant’s evidence with counteraffidavits or other admissible evidence, the court may accept

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defendant’s evidence as true and grant the motion. If there is some good reason why such facts

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are not available to plaintiff when required to oppose a motion for summary judgment, the court

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will consider a request to postpone consideration of the defendant’s motion. See Fed. R. Civ. P.

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56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to

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postpone consideration of the motion, the court may consider the failure to act as a waiver of

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opposition to the defendant’s motion. See L.R. 230(l). If the court grants the motion for

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Plaintiff has previously received this notice in an order filed June 15, 2011 (Doc. No.

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summary judgment, whether opposed or unopposed, judgment will be entered for the defendant

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without a trial and the case will be closed as to that defendant.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendants’ July 25, 2012 motion for supplemental briefing (Docket No. 50) is

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granted;

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2. Within thirty days from the date of this order, plaintiff may file a supplemental
opposition to defendants’ March 30, 2012 motion for summary judgment; and

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3. Defendants are granted fifteen days from the date of service of any
supplemental opposition to file a supplemental reply brief.
DATED: July 30, 2012.

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DAD:12
brow0389.supp

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