Ennis v. Herrera et al

Filing 40

ORDER signed by Magistrate Judge Dennis M. Cota on 7/22/2020. The parties may conduct discovery until 2/2/2021. The Clerk of the Court is directed to send the parties the Court's notice regarding expedited trial setting procedures upon consent to Magistrate Judge jurisdiction. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOSEPH L. ENNIS,

12

Plaintiff,

13
14

No. 2:18-CV-0816-TLN-DMC-P

v.

ORDER

A. HERRERA, et al.,

15

Defendants.

16
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

17
18

42 U.S.C. § 1983. An answer to plaintiff’s first amended complaint has been filed1 and, therefore,

19

this case is now at issue. Pursuant to Federal Rule of Civil Procedure 16(b), the Court will, by

20

this order, set a schedule for this litigation.

21

///

22

///

23
24
25
26
27
28

On June 16, 2020, the Court granted plaintiff’s motion to amend (ECF No. 26) his
complaint and ordered plaintiff to file and serve an amended pleading within 30 days of the
Court’s order. However, the Court now notes that plaintiff’s motion to amend was accompanied
by a proposed amended complaint erroneously labeled “First Amended Petition for Writ of
Habeas Corpus” (ECF No. 27). Therefore, this action now proceeds on plaintiff’s first amended
complaint filed on February 24, 2020. Defendants having duly responded to plaintiff’s amended
complaint, the Court now issues this amended scheduling order in accordance with its June 16,
2020 order.
1
1

1
2

1.

No amendments to the pleadings or joinder of parties shall be permitted

without leave of Court.

3

2.

Discovery requests shall be served by the party seeking the discovery on all

4

parties to the action. Discovery requests shall not be filed with the Court except when required

5

by Eastern District of California Local Rules 250.1(a), 250.2(c), 250.3(c), and/or 250.4(c).

6

Improperly filed discovery requests will be disregarded;

7

3.

8

request is served;

9

4.

Responses to written discovery requests shall be due 45 days after the

Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), defendant(s) may

10

depose plaintiff and any other incarcerated witness upon condition that, at least 14 days before

11

such a deposition, all parties are served with the notice required by Federal Rule of Civil

12

Procedure 30(b)(1);

13

5.

If disputes arise about the parties’ obligations to respond to requests for

14

discovery, the parties shall comply with all pertinent rules, including Federal Rules of Civil

15

Procedure 5, 7, 11, 26, and 37 and Eastern District of California Local Rules 133, 134, 135, 137,

16

130, 131, 110, 141, 141.1, and 230(m); unless otherwise ordered, Local Rule 251 shall not apply.

17

Filing a discovery motion that does not comply with all applicable rules may result in imposition

18

of sanctions, including but not limited to denial of the motion;

19

6.

The parties may conduct discovery until February 2, 2021. All requests

20

for discovery pursuant to Fed. R. Civ. P. 30, 31, 33, 34, 36, and 45 shall be served by this

21

discovery cut-off date. Any motions necessary to compel discovery shall be filed within 60 from

22

this cut-off date.

23

7.

24

All dispositive motions shall be filed within 90 days after the discovery

cut-off date specified above;

25

8.

Unless otherwise ordered, all motions shall be briefed pursuant to Local

26

Rule 230(m), and failure to oppose such a motion in a timely manner may be deemed a waiver of

27

opposition to the motion;

28

///
2

1

9.

Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc),

2

and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following

3

requirements for opposing a motion for summary judgment made by defendants pursuant to Rule

4

56 of the Federal Rules of Civil Procedure: Such a motion is a request for an order for judgment

5

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

6

the facts that the defendants contend are not reasonably subject to dispute and that entitle the

7

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

8

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

9

upon statements made under the penalty of perjury in the complaint if the complaint shows that

10

plaintiff has personal knowledge of the matters stated and plaintiff calls to the Court’s attention

11

those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one or more

12

affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the

13

person who signs an affidavit or declaration must have personal knowledge of the facts stated.

14

Plaintiff may rely upon written records, but plaintiff must prove that the records are what plaintiff

15

claims they are. Plaintiff may rely upon all or any part of the transcript of one or more

16

depositions, answers to interrogatories, or admissions obtained in this proceeding. If plaintiff

17

fails to contradict the defendants’ evidence with counteraffidavits or other admissible evidence,

18

the defendants’ evidence may be taken as the truth and the defendants’ motion for summary

19

judgment granted. If there is some good reason why such facts are not available to plaintiff when

20

required to oppose a motion for summary judgment, the Court will consider a request to postpone

21

considering the defendants’ motion. If plaintiff does not serve and file a written opposition to the

22

motion or a request to postpone consideration of the motion, the Court may consider the failure to

23

act as a waiver of opposition to the defendants’ motion. If the defendants’ motion for summary

24

judgment, whether opposed or unopposed, is granted, judgment will be entered for the defendants

25

without a trial and the case will be closed.

26

10.

If defendant moves for summary judgment, defendant must

27

contemporaneously serve with the motion, but in a separate document, a copy of the attached

28

Rand Notice. See Rand, 154 F.3d at 957. Failure to do so may constitute grounds for denial of
3

1

the motion.

2
3
4
5
6

11.

At a later stage in the proceedings, the Court will issue a final scheduling

12.

The Clerk of the Court is directed to send the parties the Court’s notice

order; and

regarding expedited trial setting procedures upon consent to Magistrate Judge jurisdiction.
IT IS SO ORDERED.

7
8

Dated: July 22, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

1

Rand Notice to Plaintiff

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely
and adequate notice of what is required” to oppose a motion for summary judgment. See Woods
v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). The
Court requires that you be provided with this notice regarding the requirements for opposing a
motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
When a defendant moves for summary judgment, the defendant is requesting that the
Court grant judgment in defendant’s favor without a trial. If there is no real dispute about any
fact that would affect the result of your case, the defendant who asked for summary judgment is
entitled to judgment as a matter of law, which will end your case against that defendant. A
motion for summary judgment will set forth the facts that the defendant asserts are not reasonably
subject to dispute and that entitle the defendant to judgment.
To oppose a motion for summary judgment, you must show proof of your claims.2 To do
this, you may refer to specific statements made in your complaint if you signed your complaint
under penalty of perjury and if your complaint shows that you have personal knowledge of the
matters stated. You may also submit declarations setting forth the facts that you believe prove
your claims, as long as the person who signs the declaration has personal knowledge of the facts
stated. You may also submit all or part of deposition transcripts, answers to interrogatories,
admissions, and other authenticated documents. For each of the facts listed in the defendant’s
Statement of Undisputed Facts, you must admit the facts that are undisputed, and deny the facts
that are disputed. If you deny a fact, you must cite to the proof that you rely on to support your
denial. See L.R. 260(b). If you fail to contradict the defendant’s evidence with your own
evidence, the Court may accept the defendant’s evidence as the truth and grant the motion.
The Court will consider a request to postpone consideration of the defendant’s motion if
you submit a declaration showing that for a specific reason you cannot present such facts in your
opposition. If you do not respond to the motion, the Court may consider your failure to act as a
waiver of your opposition. See L.R. 230(l).
If the Court grants the defendant’s motion, whether opposed or unopposed, judgment will
be entered for that defendant without a trial and the case will be closed as to that defendant.

17
18
19
20
21
22
23
24
25
26
If the motion for summary judgment concerns the exhaustion of administrative
remedies, you must submit proof of specific facts regarding the exhaustion of administrative
remedies. See Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Albino v. Baca, 747 F.3d
1162 (9th Cir. 2014).
5
2

27
28