(PC) Hunter v. Fisher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHAN HUNTER, 1:19-cv-00625-AWI-BAM (PC) 12 Plaintiff, SECOND INFORMATIONAL ORDER – NOTICE AND WARNING OF 13 v. REQUIREMENTS FOR OPPOSING DEFENDANTS’ SUMMARY JUDGMENT 14 FISHER, et al., MOTION 15 Defendants. (ECF No. 46) 16 TWENTY-ONE (21) DAY DEADLINE 17 18 Plaintiff Nathan Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 20 Defendants Cui,1 Thompson, Fisher, and Hernandez for excessive force in violation of the Eighth 21 Amendment. 22 I. Rand Notice 23 Defendants filed a motion for summary judgment on June 8, 2020. (ECF No. 46.) 24 Defendants indicated that the motion was accompanied by a Rand warning, (ECF No. 46, p. 1), 25 but the Court finds no Rand warning was filed. Consequently, pursuant to Woods v. Carey, 684 26 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. 27 Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies Plaintiff of the following 28 1 Erroneously sued as Defendant “Chi.” 1 rights and requirements for opposing the motion: 2 1. Unless otherwise ordered, all motions for summary judgment are briefed pursuant 3 to Local Rule 230(l). 4 2. Plaintiff is required to file an opposition or a statement of non-opposition to 5 Defendants’ motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 6 opposition or a statement of non-opposition to the motion, this action may be dismissed, with 7 prejudice, for failure to prosecute. The opposition or statement of non-opposition must be filed 8 not more than 21 days after the date of service of the motion. Id. 9 3. A motion for summary judgment is a request for judgment on some or all of 10 Plaintiff’s claims in favor of Defendants without trial. Fed. R. Civ. P. 56(a). Defendants’ motion 11 sets forth the facts which they contend are not reasonably subject to dispute and that entitle them 12 to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed 13 Facts. Local Rule 260(a). 14 4. Plaintiff has the right to oppose a motion for summary judgment. To oppose the 15 motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 16 Defendants’ motion but argue that Defendants are not entitled to judgment as a matter of law. 17 5. In the alternative, if Plaintiff does not agree with the facts set forth in Defendants’ 18 motion, he may show that Defendants’ facts are disputed in one or more of the following ways: 19 (1) Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the 20 opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the 21 matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or 22 opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth 23 the facts which Plaintiff believes prove his claims;2 (3) Plaintiff may rely upon written records but 24 Plaintiff must prove that the records are what he claims they are;3 or (4) Plaintiff may rely upon 25 2 A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2) which are based on the personal knowledge of the person giving the statement, and (3) to which the person giving the statement is 26 competent to testify. 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4). A declaration must be dated and signed under penalty of perjury as follows: “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true 27 and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746. 3 Sworn or certified copies of all papers referred to in the declaration must be included and served on the opposing 28 party. Fed. R. Civ. P. 56(e). 1 all or any part of the transcript of one or more depositions, answers to interrogatories, or 2 admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendants’ motion 3 with declarations or other evidence, Defendants’ evidence will be taken as truth, and final 4 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 5 6. In opposing Defendants’ motion for summary judgment, Local Rule 260(b) 6 requires Plaintiff to reproduce Defendants’ itemized facts in the Statement of Undisputed Facts 7 and admit those facts which are undisputed and deny those which are disputed. If Plaintiff 8 disputes (denies) a fact, Plaintiff must cite to the evidence used to support that denial (e.g., 9 pleading, declaration, deposition, interrogatory answer, admission, or other document). Local 10 Rule 260(b). 11 7. If discovery has not yet been opened or if discovery is still open and Plaintiff is 12 not yet able to present facts to justify the opposition to the motion, the Court will consider a 13 request to postpone consideration of Defendants’ motion. Fed. R. Civ. P. 56(d). Any request to 14 postpone consideration of Defendants’ motion for summary judgment must include the following: 15 (1) a declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, (2) 16 a showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion 17 for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009); 18 Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir. 2006); California v. 19 Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion for summary 20 judgment must identify what information is sought and how it would preclude summary 21 judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100–01; Margolis v. Ryan, 140 22 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 23 8. Unsigned declarations will be stricken, and declarations not signed under penalty 24 of perjury have no evidentiary value. 25 9. The failure of any party to comply with this order, the Federal Rules of Civil 26 Procedure, or the Local Rules of the Eastern District of California may result in the imposition of 27 sanctions including but not limited to dismissal of the action or entry of default. 28 /// 1 II. Deadline to File Opposition 2 In light of Plaintiff’s pro se status and Defendants’ failure to properly file a Rand notice 3 with their motion for summary judgment, the Court finds it appropriate to extend the deadline for 4 Plaintiff to file his opposition to Defendants’ motion for summary judgment. 5 III. Conclusion and Order 6 Based on the foregoing, IT IS HEREBY ORDERED as follows: 7 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall file an 8 opposition to Defendants’ motion for summary judgment, in compliance with Federal 9 Rule of Civil Procedure 56 and Local Rule 260; and 10 2. Any request for an extension of time of this deadline must be filed on or before it expires, 11 and must be supported by good cause. 12 IT IS SO ORDERED. 13 14 Dated: June 9, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28