(PC) Anglin v. Pratti ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ANGLIN, ) Case No. 1:19-cv-01334-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER GRANTING PLAINTIFF OPPORTUNITY 13 v. ) TO SUBMIT DECLARATION, SIGNED UNDER PENALTY OF PERJURY, IN SUPPORT OF HIS ) 14 M. PRATTI, et al., OPPOSITION FILED ON FEBRUARY 1, 2021 ) 15 Defendants. ) (ECF No. 42) ) 16 ) 17 Plaintiff Raymond Anglin is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 On December 30, 2020, Defendants filed a motion for summary judgment for failure to 20 exhaustion the administrative remedies. 21 On February 1, 2021, Plaintiff filed an opposition to Defendants’ motion for summary 22 judgment which was entered on the docket on February 17, 2021. Defendants filed a timely reply on 23 February 24, 2021. 24 Plaintiff’s opposition is not signed under penalty of perjury, and Plaintiff did not submit a 25 declaration signed under penalty of perjury in support of his opposition. 26 Federal Rule of Civil Procedure 56(c)(1) requires a party to support its factual positions by 27 citing to, among other things, affidavits or declarations. Rule 56(c)(4) of the Federal Rules of Civil 28 Procedure states that affidavits and declarations submitted for or against a summary judgment motion 1 || “must be made on personal knowledge, set out facts that would be admissible in evidence, and show 2 || that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). 3 || Thus, only admissible evidence may be considered by the court. Beyene v. Coleman Sec. Services, 4 Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Inadmissible hearsay cannot be considered on a motion fo 5 ||summary judgment. see Anheuser-Busch v. Natural Beverage Distrib., 69 F.3d 337, 345 n.4 (9th Cir. 6 || 1995). Further, when “any law of the United States” requires any matter to be supported by an 7 || affidavit, the declarant must swear under the penalty of perjury of the laws of the United States that 8 || the matters described in the affidavit are true and correct.” 28 U.S.C. § 1746(2). 9 Here, Plaintiff did not submit a declaration, signed under penalty of perjury, in support of the 10 || contents of his opposition to Defendants’ motion for summary judgment. Without the proper 11 || verification, the Court cannot consider any of the content of Plaintiff's opposition as evidence in 12 || determining whether a genuine issue of material facts exists. Therefore, to the extent Plaintiff wishes 13 || the Court to consider any of the content of his opposition, he must file a declaration and attest under 14 || penalty of law that the contentions are true and correct. 15 Accordingly, it is HEREBY ORDERED that: 16 1. Plaintiff is granted twenty-one (21) days from the date of service of this order to 17 submit a declaration, signed under penalty of perjury, as to any or all of contents of 18 Plaintiff's opposition filed on February 1, 2021; and 19 2. Defendants are granted seven (7) days from the date that Plaintiff files a declaration t 20 file a reply. 21 22 IT IS SO ORDERED. Al (ee 23 |! Dated: _March 9, 2021 OF 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28