Cabrera v. Dee et al

Filing 24

ORDER PROVIDING PLAINTIFF NOTICE AND WARNING. Signed by Judge Jeffrey S. White on 7/11/12. (jjoS, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDIBERTO CABRERA,

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Plaintiff,
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v.
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OFFICER DEE, et al.,
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Defendants.
__________________________________ )

No. C 11-2676 JSW (PR)
ORDER PROVIDING
PLAINTIFF NOTICE AND
WARNING

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Plaintiff, a county jail inmate, filed this pro se civil rights action under 42 U.S.C.
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§ 1983. Defendants have filed a motion for summary judgment. Pursuant to Woods v.
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Carey, No. 09-15548, slip op. 7871, 7884-85 (9th Cir. July 6, 2012), the following
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notices and warnings are provided to Plaintiff for a second time.
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Plaintiff must read the following “NOTICE -- WARNING (SUMMARY
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JUDGMENT),” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952,
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953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th
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Cir. 1988). To the extent defendants argue that Plaintiff failed to exhaust his
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administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should also read
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the “NOTICE -- WARNING (EXHAUSTION)” which is provided to him pursuant to
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Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003):
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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary

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judgment. Generally, summary judgment must be granted when there is no genuine issue

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of material fact--that is, if there is no real dispute about any fact that would affect the

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result of your case, the party who asked for summary judgment is entitled to judgment as

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a matter of law, which will end your case. When a party you are suing makes a motion

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for summary judgment that is properly supported by declarations (or other sworn

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testimony), you cannot simply rely on what your complaint says. Instead, you must set

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out specific facts in declarations, depositions, answers to interrogatories, or authenticated

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documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's

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declarations and documents and show that there is a genuine issue of material fact for

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trial. If you do not submit your own evidence in opposition, summary judgment, if

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appropriate, may be entered against you. If summary judgment is granted, your case will

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be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)

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If defendants file an unenumerated motion to dismiss for failure to exhaust, they

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are seeking to have your case dismissed. If the motion is granted it will end your case.

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You have the right to present any evidence you may have which tends to show

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that you did exhaust your administrative remedies. Such evidence may be in the form of

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declarations (statements signed under penalty of perjury) or authenticated documents,

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that is, documents accompanied by a declaration showing where they came from and

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why they are authentic, or other sworn papers, such as answers to interrogatories or

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depositions.

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If defendants file a motion to dismiss and it is granted, your case will be dismissed
and there will be no trial.

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IT IS SO ORDERED.
DATED: July 11, 2012

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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EDEBERTO CABRERA,

Case Number: CV11-02676 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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OFC DEE et al,

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Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on July 11, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Ediberto Cabrera
885 N. San Pedro Street
DTY 532 07048290
San Jose, CA 95110

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Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk