Hale v. Shinn ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kilian Gregoire Hale, No. CV-20-00558-TUC-JCH 10 Plaintiff, ORDER 11 v. 12 David Shinn, et al., 13 Defendants. 14 15 Before the Court are two motions by pro se Plaintiff Hale. The first is a "Motion to 16 Extend Plaintiff's Response to Defendants' Motion for Summary Judgment," Doc. 95, 17 which the Court previously construed as a motion to stay summary judgment under Rule 18 56(d). Doc. 96. The second is a "Motion for Assistance in Distribution," requesting the 19 Clerk of the Court to file Plaintiff's Response to Defendants’ Motion for Summary 20 Judgment. Doc. 99. For the reasons below, the Court will deny Plaintiff's Motion to Stay 21 Summary Judgment (Doc. 95), deny as moot Plaintiff's Motion for Assistance (Doc. 99), 22 and grant Plaintiff leave to amend his Response no later than March 3, 2023. 23 I. Background 24 The Court recounts the following detailed procedural background because it shows 25 Plaintiff continued to allege wrongful exposure to COVID-19 after the Court's Screening 26 Order dismissed all claims based on that theory. Plaintiff had ample opportunity to amend 27 his Complaint or seek clarification of his remaining claims. The Court lays out this history, 28 clarifies it to the extent necessary, and uses it to resolve Plaintiff's pending motions. 1 A. Plaintiff's Complaint alleged wrongful exposure to COVID-19 and denial of adequate care for Plaintiff's COVID-19 symptoms. 2 In July 2021, Plaintiff filed his Second Amended Complaint. Doc. 19. The 3 Complaint alleged two basic theories: (1) Plaintiff was wrongfully exposed to COVID-19 4 by being transferred to a unit in quarantine lockdown due to a COVID-19 outbreak, see 5 Doc. 19 at 4–6, 10–14; and (2) after Plaintiff contracted COVID-19, his symptoms were 6 inadequately treated by Defendants Warren and Ferguson, see Doc. 19 at 6–9, 14–15. 7 These two theories were alleged to support claims for relief under the Eighth Amendment 8 (Count 1), Fourteenth Amendment (Count 2), and Fifth Amendment (Count 3). Doc. 19 at 9 4, 17, 18. Plaintiff's three claims for relief were alleged against nine defendants: Warren (a 10 Centurion Nurse) and Ferguson (a Centurion Facility Health Administrator) as well as 11 Wheeler (Centurion’s CEO), Pacheco (the Warden), Martinez (the Deputy Warden), 12 Shinn (the Arizona Corrections Department Director), Brnovich (the Arizona Attorney 13 General), and correctional officers John Does #1 and #2. Doc. 19 at 1–2. Plaintiff's two 14 theories, three counts, and nine defendants were presented over fifteen handwritten, single- 15 spaced pages. Doc. 19 at 4–18. 16 B. The Court's Screening Order dismissed all claims and defendants except 17 the denial-of-care claims against Defendants Warren and Ferguson. 18 Two months later, the Court issued a screening order dismissing all claims and 19 defendants except for Plaintiff's denial of medical care claims against Defendants Warren 20 and Ferguson. Doc. 21. The Screening Order distilled the following facts connected to 21 Defendants Warren and Ferguson, all of which concern the treatment of Plaintiff's COVID- 22 19 symptoms and not his exposure to COVID-19: 23 On August 26, 2020 [after testing positive for COVID-19], Plaintiff 24 submitted a Health Needs Request (HNR), and was seen for an E.K.G. [Doc. 19 at 6.] Plaintiff was prescribed Tylenol for his headaches, but "never saw 25 the provider, Defendant N.P. Alice Warren." Id. On September 3, 2020, 26 Plaintiff was assigned to a "hard labor" job in the kitchen, which made his symptoms worse. Id. On September 10, 2020, Plaintiff submitted another 27 HNR, and was told that he would be scheduled to see "the provider" 28 (presumably, Defendant Warren). Id. at 7. A nurse told Plaintiff that she would ask Warren to prescribe Excedrin for Plaintiff's headaches in the 1 meantime. Plaintiff never received any Excedrin. Id. 2 On September 12, 2020, Plaintiff submitted an informal complaint resolution, and, on October 6, 2020, he submitted a medical grievance to 3 Defendant Ferguson regarding the lack of any visit with Defendant Warren, 4 the failure to receive the Excedrin, and his "increasing serious COVID- related health problems." Id. On October 9, 2020, Plaintiff was seen by 5 Warren. (Doc. 19 at 7.3) Plaintiff told her Tylenol did not work, his 6 symptoms were getting worse, and asked to be referred to a virologist. Warren "dismissed Plaintiff's serious medical needs as being allergies." Id. 7 Plaintiff then asked for Excedrin for his headaches, but Warren "suggested 8 that Plaintiff should purchase ibuprofen from the store if the Tylenol did not help." Id. Plaintiff told Warren that he was indigent and unable to purchase 9 ibuprofen, and, in any event, that he was not supposed to take ibuprofen "due 10 to kidney problems." Id. Plaintiff then "began another round of HNRs," but the only response he 11 received from Ferguson was to "submit an HNR." Id. at 8. After "several 12 months went by without any medical care or treatment," Plaintiff filed several more grievances and HNRs, but was not seen by the provider again 13 or provided any treatment for his symptoms. Id. Plaintiff alleges that the only 14 response to his grievances were from Ferguson directing him to "submit an HNR." Id. 15 Doc. 21 at 4–5. 16 The Screening Order explained that although Plaintiff alleged medical care claims 17 under three constitutional amendments, "his medical care claim arises [only] under the 18 Eighth Amendment." Doc. 21 at 5. The Screening Order also explained the relevant law, 19 in particular that "a § 1983 medical claim . . . must show (1) a 'serious medical need' by 20 demonstrating that failure to treat the condition could result in further significant injury 21 . . . and (2) the defendant's response was deliberately indifferent." Doc. 21 at 5–6 (citing 22 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (emphasis added)). The Screening 23 Order then applied this law to Defendants Brnovich, Shinn, Pacheco, Martinez, Wheeler, 24 and John Does # 1 and #2. Doc. 21 at 7–9. 25 In its analysis, the Screening Order considered Plaintiff's theory of wrongful 26 exposure to COVID-19 several times. Doc. 21 at 7:20–27, 8:4–5, 8:9–13, 9:5–7. Each 27 time—and mindful of the need to construe pro se pleadings liberally—the Screening Order 28 concluded that Plaintiff's exposure allegations failed to state a claim because they were 1 "vague and conclusory." Id. For those reasons, among others, the Screening Order 2 dismissed Counts 2 and 3, and all defendants except Warren and Ferguson. Doc. 21 at 10. 3 Regrettably, the Screening Order did not explicitly state that Plaintiff's exposure theory 4 also failed to state a claim with respect to Defendants Warren and Ferguson—though that 5 was strongly implied.1 6 C. The Court denied Plaintiff's subsequent Motion for Reconsideration, which reasserted Plaintiff's exposure theory of liability, and Plaintiff did not seek 7 to amend his Complaint. 8 In January 2022, the Court denied Plaintiff’s motion to reconsider the Court's 9 Screening Order. Doc. 34 at 10. In his motion for reconsideration, Plaintiff argued among 10 other things that the Court had "overlooked or misinterpreted" several facts in the 11 Complaint. Doc. 28 at 3. These facts all concerned Plaintiff's theory that he was wrongfully 12 exposed to COVID-19. Doc. 28 at 3–8. The Court denied Plaintiff's motion, finding that 13 he "fails to cite new facts or legal authority[.]" Doc. 34 at 4. The Court related that it still 14 "cannot decipher Plaintiff's allegations in Counts II and III[,]" and "affirm[ed] its finding 15 1 For example, the Complaint’s twelve supplemental pages are almost all labeled 16 "Count One," but are divided into a variety of subsections that do not all clearly relate to 17 Count 1. Doc. 19 at 5–16. These pages are incorporated by reference into Counts 2 and 3. Doc. 19 at 17–18. The supplement sections include one titled "[]Denial of Medical Care," 18 Doc. 19 at 6–8, but other sections are titled "Other Facts That May Or May Not Be Relevant 19 To Plaintiff's Case," Doc. 19 at 5–6, "Exhaustion of State Remedies (Medical)," Doc. 19 at 9, "Exhaustion of State Remedies (RE: The Transfer, Admittance, Direct Exposure, And 20 Housing With Virus Positive Inmates," Doc. 19 at 9–10, a long section frequently titled 21 "Claims for Relief," Doc. 19 at 10–16, but also including apparent subsections titled "Knowledge By Defendants," Doc. 19 at 10, "A. Liabilities," Doc. 19 at 11 (which includes 22 sub-subsections "Acts Regarding Defendants" numbers "(1)–(5)," Doc. 19 at 11–14), 23 "Medical Deliberate Indifference," Doc. 19 at 14 (which includes more sub-subsections "Acts Regarding Defendants" numbers "(6)–(7)," Doc. 19 at 14–16), and finally "Elements 24 of Plaintiff['s] Claim." Doc. 19 at 16. These sections, subsections, and sub-subsections frequently refer to each other. See, e.g., Doc. 19 at 15 ("Defendant FH-A. Ferguson denial 25 of serious medical needs she was aware of and failed to act, and culpable for action or 26 inaction in training, supervision and control of subordinates, and other liabilities listed in ("A. Liabilities", top of Page 3-G) for further serious injury (listed on Page 3-D) to the 27 Plaintiff.") (verbatim). Thus, when the Court dismissed Counts 2 and 3, and when the Court 28 rejected Plaintiff’s exposure theory, it rejected all aspects of the Complaint that supported those Counts and that theory, notwithstanding the Complaint’s “Count 1” label. 1 that the allegations in Counts II and III are vague, confusing, and conclusory." Doc. 34 2 at 8. The Court repeatedly characterized Plaintiff's remaining claims as relating to a "denial 3 of medical care." Doc. 34 at 2, 8. Finally, the Court denied Rule 54(b) relief, explaining 4 that Plaintiff could not appeal the Screening Order because "the Court's dismissal of the 5 dismissed Defendants and claims was without prejudice and thus not a final judgment." 6 Doc. 34 at 9. The Court also explained that the scheduling order set a deadline for parties 7 to amend pleadings, including the Complaint. Id. 8 After the Court denied his reconsideration motion, Plaintiff did not seek to amend 9 his Complaint. Instead, Plaintiff filed a one-page motion for summary judgment seeking to 10 get an appealable final order from the Court's Screening Order and reconsideration denial. 11 Doc. 33. The Court denied as moot Plaintiff's motion for summary judgment, explaining 12 that the Screening Order and the reconsideration denial were without prejudice and not a 13 final judgment. Doc. 36 at 1. 14 Defendants timely answered the Complaint, and their Answer indicated they 15 believed Plaintiff's claims were for a denial of medical care in failing to diagnose or treat 16 his symptoms. See Doc. 31 at 2 ("Defendants deny they failed to provide Plaintiff with 17 medically necessary treatment or failed to appropriately respond to and address Plaintiff's 18 Health Needs Requests."), 3 ("Plaintiff merely disagrees with his course of medical 19 treatment [and] alleges only a difference of opinion among his medical providers."). After 20 Defendants filed their Answer, Plaintiff still did not seek to amend his Complaint but 21 instead began to pursue discovery. See docket generally. 22 D. The Court denied many of Plaintiff's production requests because they exceeded the scope of his remaining denial-of-care claims. 23 In October 2022, the Court relied on the Screening Order's statement of facts and 24 Plaintiff's remaining denial of medical care claims to evaluate Plaintiff's motion to compel 25 production of certain documents. See Doc. 80 at 3–12. Two of these documents were the 26 ADCRR Health Services Technical Manual and the ADCRR Mandatory Exposure Plan. 27 Doc. 80 at 6. The Court denied Plaintiff's motion to compel these documents in part because 28 they are "irrelevant to Plaintiff's claim of Defendant Warren's deliberate indifference in 1 failing to prescribe Excedrin or diagnose Plaintiff's COVID-19 symptoms, or to Plaintiff's 2 claim of Defendant Ferguson's deliberate indifference to Plaintiff's complaints about 3 Defendant Warren's care." Doc. 80 at 7. The Court denied many of Plaintiff's other requests 4 for the same reason. Doc. 80 at 6–19. 5 E. The Court granted Plaintiff's unobjected subpoena only because the documents sought were not unduly burdensome. 6 Shortly after denying most of Plaintiff's production requests, the Court granted his 7 fourth request to issue a certain subpoena. Doc. 82. Plaintiff's subpoena sought (1) the 8 ADCRR Health Services Technical Manual; (2) the ADCRR Mandatory Exposure Control 9 Plan; and (3) all "Routine Statistical Reports for the A.S.P.C. Tucson/Whetstone unit 10 compiled by the Health Unit pursuant to Department Order #117 from July 1, 2020, to 11 August 1, 2020." Doc. 81 at 5–6. Plaintiff sought the statistical reports because they 12 allegedly show "actions and inactions during the COVID virus pandemic at Whetstone, [] 13 which began a week prior to Plaintiff's transfer [to Whetstone]." See Doc. 81 at 4, 7. The 14 Court approved Plaintiff's subpoena because production did not appear to be unduly 15 burdensome, and neither Defendants nor the subpoenaed non-party objected. Compare 16 Doc. 46 at 2, 4–5, with Doc. 82 at 1; see also docket generally; Fed. R. Civ. P. 45. 17 F. The Court responded to Plaintiff's request for clarification of his claim by 18 referring him to the statement of facts in the Screening Order. 19 After Defendants filed the Motion for Summary Judgment, Doc. 92, Plaintiff filed 20 another motion for clarification and a motion for time extension. Doc. 95. Plaintiff sought 21 clarification of "the claim for which Defendants Warren and Ferguson are required to 22 answer[.]" Doc. 95 at 2. Plaintiff reiterated his exposure theory that specifically Defendant 23 Ferguson and "possibly" Defendant Warren were liable for failing to protect Plaintiff from 24 COVID-19. Doc. 95 at 3–4. Plaintiff sought a time extension to receive documents "vital 25 to [his] defense" that were the subject of his subpoena. Doc. 96 at 1 (citing Doc. 82). 26 The Court ruled on Plaintiff's motion for reconsideration, and construed Plaintiff's 27 motion for time extension as a motion to stay summary judgment. Doc. 96. The Court’s 28 ruling explained that Plaintiff’s claim was adequately described in the Court’s denial of 1 Plaintiff’s motion to compel. Doc. 96 at 2 (citing and attaching Doc. 80). The Motion to 2 Compel Denial Order in turn quotes the Screening Order's statement of facts with respect 3 to Defendants Warren and Ferguson, which does not include Plaintiff's exposure theory. 4 Doc. 80 at 1–2. The Court then construed the second aspect of Plaintiff's motion as a motion 5 to stay summary judgment, deferred ruling on it, and ordered Defendants to respond. Id. 6 Defendants responded to Plaintiff's motion to stay summary judgment. Doc. 97. 7 Defendants argued that the documents Plaintiff sought were not vital to his defense because 8 they were irrelevant to his remaining denial-of-care claims. Id. Specifically, Defendants 9 alleged that Plaintiff sought the statistical reports "for the purposes of establishing whether 10 he should have been transferred to ASPC-Tucson in the first place, a claim which did not 11 survive the screening of the Complaint by the Court." Doc. 97 at 4. 12 G. Plaintiff responded to Defendants' Motion for Summary Judgment without waiting for the Court's ruling on his Motion to Stay Summary Judgment. 13 After Defendants responded to Plaintiff's Motion to Stay, but before the Court's 14 ruling on it, Plaintiff responded to Defendants' Motion for Summary Judgment. Doc. 98. 15 Plaintiff reiterated his exposure theory claim in a section titled "Statement of Facts" and 16 the first part of a section titled "Issues of Disputed Facts." Doc. 98 at 2–6. Plaintiff 17 concludes that theory by stating he "should be allowed to pursue these claims . . . in addition 18 to the denial of adequate medical care by Defendants." Doc. 98 at 6. Plaintiff then begins 19 a new section titled "Denial of Medical Care," and proceeds to dispute the basis of 20 Defendants' Motion for Summary Judgment. See Doc. 98 at 6–18. Plaintiff also filed a 21 "Motion for Assistance in Distribution" requesting the Clerk of the Court to file his 22 Response. Doc. 99. 23 II. Legal Standard 24 Under Federal Rule of Civil Procedure Rule 56(d), the Court may defer ruling on a 25 motion for summary judgment and allow time for discovery when a party demonstrates it 26 is unable to present facts essential to justify its opposition. See Emp'rs Teamsters Local 27 Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir. 2004) 28 (citation omitted). The movant must provide "the specific facts [he] hopes to elicit from 1 further discovery," and demonstrate that "the sought-after facts are essential to oppose 2 summary judgment." Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 3 F.3d 822, 827 (9th Cir. 2008). 4 III. Analysis A. Plaintiff's claims against Defendants do not extend to a failure to protect 5 him from exposure to COVID-19. 6 As the history above shows, Plaintiff's exposure theory of liability did not survive 7 the Court's Screening Order. To the extent the Screening Order (Doc. 21), Reconsideration 8 Denial Order (Doc. 34), Motion to Compel Denial (Doc. 80), and clarification ruling (Doc. 9 96) were not already clear, the Court clarifies its Screening Order that Plaintiff's exposure 10 theory of liability is as vague and conclusory with respect to Defendants Warren and 11 Ferguson as it was with respect to all the dismissed defendants. The only claims that 12 survived the Court's Screening Order were those alleging a denial of medical care by 13 Defendants Warren and Ferguson. 14 B. Plaintiff's Motion to Stay Summary Judgment will be denied because the 15 documents Plaintiff seeks are irrelevant to his claims. 16 The Court will deny Plaintiff's Motion to Stay because Plaintiff fails to identify any 17 specific facts he hopes to elicit, and the items sought by his subpoena are irrelevant to his 18 denial of medical care claims against Defendants Warren and Ferguson. Plaintiff's motion 19 states only that the documents he seeks are "vital," but provides no explanation why. The 20 Court previously found that the ADCRR Health Services Technical Manual and the 21 ADCRR Mandatory Exposure Control Plan are irrelevant to Plaintiff's claims. Upon further 22 review, the Court now finds the statistical reports Plaintiff's subpoena seeks are also 23 irrelevant to his claims. Plaintiff sought these reports to dispute issues arising from his 24 exposure to COVID-19, not his treatment for COVID-19. Defendants' "actions and 25 inactions" regarding Plaintiff's exposure to COVID-19 cannot support a claim of Defendant 26 Warren's deliberate indifference in treating or diagnosing Plaintiff's COVID-19 symptoms. 27 They similarly cannot support a claim of Defendant Ferguson's deliberate indifference to 28 Plaintiff's complaints about Defendant Warren's care. Because the information Plaintiff's 1 subpoena seeks is irrelevant to his healthcare claims against Defendants Warren and 2 Ferguson, Plaintiff has failed to demonstrate any essential facts that further discovery could 3 provide. Plaintiff has therefore also failed to demonstrate a reason under Rule 56(d) to stay 4 Defendants' Motion for Summary Judgment. 5 C. Plaintiff may amend his Response to Defendants' Motion for Summary Judgment if he so chooses. 6 Plaintiff will be allowed to amend his Response, Doc. 98, in light of this order. 7 Plaintiff filed his Response after the Court's deadline of January 13, 2023, but before his 8 requested extension deadline of February 12, 2023. Compare Doc. 96 (filed January 26, 9 2023), with Doc. 95. Plaintiff may have believed his Response was due even though the 10 Court had not yet ruled on his Motion to Stay Summary Judgment. With that in mind, the 11 Court will grant Plaintiff leave to amend his Response within 30 days of this order. Plaintiff 12 is not obligated to amend his Response, but if he chooses to do so he is advised to review 13 the Court's order explaining the requirements for a motion for summary judgment response 14 (Doc. 94 (attached for convenience as Exhibit A)). 15 If Plaintiff chooses to amend his Response, Defendants shall reply to Plaintiff's 16 Response within 15 days of service. If Plaintiff chooses not to amend his Response, 17 Defendants shall reply to Plaintiff's response no later than March 17, 2023. 18 IV. Order 19 For the reasons above, 20 IT IS ORDERED DENYING Plaintiff's Motion for Stay of Summary Judgment 21 (Doc. 95 at 1); 22 IT IS FURTHER ORDERED GRANTING Plaintiff leave to amend his Response 23 (Doc. 98) no later than March 3, 2023. If Plaintiff amends, Defendants shall reply to 24 Plaintiff's amended Response within 15 days of service. If Plaintiff does not amend, 25 Defendants shall reply to Plaintiff's Response (Doc. 98) by March 17, 2023. 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED DENYING AS MOOT Plaintiff's "Motion for 2|| Assistance in Distribution" (Doc. 99). Plaintiff's Motion requests the Clerk of the Court to 3|| file his Response (Doc. 98), but the Clerk has already done so. 4 Dated this 31st day of January, 2023. 5 6 7 WS Ht. onorable John C. Hinderaker 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- EXHIBIT A 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kilian Gregoire Hale, No. CV 20-00558-TUC-JCH 10 Plaintiff, 11 vs. ORDER 12 David Shinn, et al. 13 Defendants. 14 15 16 Defendants have filed a Motion for Summary Judgment pursuant to Federal Rule of 17 Civil Procedure 56. The Court is responsible for making a pro se prisoner “aware of the 18 requirements and consequences” of a motion for summary judgment. Rand v. Rowland, 19 154 F.3d 952, 960 (9th Cir. 1998). In particular, a prisoner must be “‘informed of his or 20 her right to file counter-affidavits or other responsive evidentiary materials and be alerted 21 to the fact that failure to do so might result in the entry of . . . judgment against the 22 prisoner.’” Wyatt v. Terhune, 315 F.3d 1108, 1114 n.6 (9th Cir. 2003). A prisoner should 23 be notified that if he “fails to controvert the moving party with opposing counter-affidavits 24 or other evidence, the moving party’s evidence might be taken as the truth, and final 25 judgment may be entered against the prisoner.” Id. 26 NOTICE—WARNING TO PLAINTIFF 27 THIS NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT 28 The Defendants’ Motion for Summary Judgment seeks to have your case dismissed. 1 A motion for summary judgment under Federal Rule of Civil Procedure 56 will, if granted, 2 end your case. 3 Rule 56 tells you what you must do in order to oppose a motion for summary 4 judgment. Generally, summary judgment must be granted when there is no genuine issue 5 of material fact—that is, if there is no real dispute about any fact that would affect the result 6 of your case, the party who asked for summary judgment is entitled to judgment as a matter 7 of law, which will end your case. When a party you are suing makes a motion for summary 8 judgment that is properly supported by declarations (or other sworn testimony), you cannot 9 simply rely on what your complaint says. Instead, you must set out specific facts in 10 declarations, depositions, answers to interrogatories, or authenticated documents, as 11 provided in Rule 56(e), that contradict the facts shown in the Defendants’ declarations and 12 documents and show that there is a genuine issue of material fact for trial. If you do not 13 submit your own evidence in opposition, summary judgment, if appropriate, may be 14 entered against you. If summary judgment is granted, your case will be dismissed and 15 there will be no trial. 16 Local Rule of Civil Procedure 56.1(b) also requires that you include with your 17 response to the Motion for Summary Judgment a separate statement of facts in opposition 18 to the Motion for Summary Judgment. Your separate statement of facts must include 19 numbered paragraphs corresponding to the Defendants’ (“moving party’s”) separate 20 statement of facts: 21 (b) Controverting Statement of Facts. Any party opposing a motion 22 for summary judgment must file a statement, separate from that party’s memorandum of law, setting forth: (1) for each paragraph of the moving party’s 23 separate statement of facts, a correspondingly numbered paragraph indicating 24 whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party’s 25 position if the fact is disputed; and (2) any additional facts that establish a genuine 26 issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph 27 and must refer to a specific admissible portion of the record where the fact finds support. No reply statement of facts may be filed. 28 1 LRCiv 56.1(b). You must also cite to the specific paragraph in your statement of facts that 2 supports any factual claims you make in your memorandum of law: 3 (e) Citations in Memoranda. Memoranda of law filed in support of 4 or in opposition to a motion for summary judgment, including reply memoranda, must include citations to the specific paragraph in the statement 5 of facts that supports assertions made in the memoranda regarding any 6 material fact on which the party relies in support of or in opposition to the motion. 7 8 LR.Civ 56.1(e). 9 Additionally, you must comply with the following provisions of Rule 7.2 of the 10 Local Rules of Civil Procedure: 11 (e) Length of Motions and Memoranda. (1) Unless otherwise 12 permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, may not exceed 13 seventeen (17) pages, exclusive of attachments and any required statement 14 of facts. (2) Unless otherwise permitted by the Court, a reply including its supporting memorandum may not exceed eleven (11) pages, exclusive of 15 attachments. 16 . . . . 17 (i) Briefs or Memoranda of Law; Effect of Non-Compliance. If a 18 motion does not conform in all substantial respects with the requirements of this Local Rule, or if the unrepresented party or counsel does not serve and 19 file the required answering memoranda, or if the unrepresented party or 20 counsel fails to appear at the time and place assigned for oral argument, such non-compliance may be deemed a consent to the denial or granting of the 21 motion and the Court may dispose of the motion summarily. 22 23 LRCiv 7.2. 24 You must timely respond to all motions. The Court may, in its discretion, treat your 25 failure to respond to Defendants’ Motion for Summary Judgment as a consent to the 26 granting of that motion without further notice, and judgment may be entered dismissing 27 this action with prejudice pursuant to Local Rule of Civil Procedure 7.2(i). See Brydges v. 28 Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam). 1 IT IS ORDERED that Plaintiff may file a response to Defendants’ Motion for 2| Summary Judgment, together with a separate Statement of Facts and supporting affidavits 3 | or other appropriate exhibits, no later than January 13, 2023. 4 IT IS FURTHER ORDERED that Defendants may file a reply within 15 days 5 | after service of Plaintiff's response. 6 Dated this 12th day of December, 2022. 7 g . 9 9S MH hr-h 10 onorable John C. Hinderaker United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _4-