(PC) Tomasini v. Chau ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. TOMASINI, No. 2:18-cv-00286-DAD-AC 12 Plaintiff, 13 v. ORDER 14 JAMES CHAU, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is defendants’ 19 motion for summary judgment. ECF No. 74. The motion has been fully briefed by the parties. 20 ECF Nos. 76-77. 21 Neither plaintiff’s second amended complaint nor his opposition docketed on January 19, 22 2024 are signed under penalty of perjury.1 However, an unverified complaint or unsworn 23 statements made in a party’s brief cannot be considered as evidence in opposition to summary 24 judgment. Moran v. Selig, 447 F.3d 748, 759 & n. 16 (9th Cir. 2006) (stating that an unverified 25 complaint cannot be considered as evidence on motion for summary judgment). A verified 26 1 Plaintiff’s first amended complaint was signed under penalty of perjury because plaintiff utilized 27 the pre-printed form complaint used in this judicial district. See ECF No. 12. The second amended complaint is all hand-written and did not utilize the form complaint so there is no 28 attestation clause included with plaintiff’s signature. 1 | complaint may be used as an affidavit in opposition to summary judgment if it is based on 2 || personal knowledge and sets forth specific facts that are admissible as evidence. Schroeder v. 3 || McDonald, 56 F.3d 454, 460 (9th Cir. 1995). Federal law requires a verification to be sworn or 4 | signed under penalty of perjury. See 28 U.S.C. § 1746 (providing that, if “any matter is required 5 || or permitted to be supported, evidenced, established, or proved by ... verification,” an unsworn 6 || statement is sufficient if “subscribed ... as true under penalty of perjury”).’ 7 In light of plaintiff's pro se status, the court will offer plaintiff the opportunity to submit a 8 | declaration signed under penalty of perjury attesting to the contents of his second amended 9 || complaint as well as his four page opposition to defendants’ summary judgment within 21 days 10 || from the date of this order. Defendants’ motion for summary judgment will be deemed submitted 11 || onthe papers following the expiration of this deadline. 12 Accordingly, IT IS HEREBY ORDERED that plaintiff may submit a declaration signed 13 || under penalty of perjury verifying the contents of his second amended complaint as well as his 14 | opposition to summary judgment within 21 days from the date of this order. 15 | DATED: March 7, 2024 ~ 16 Chthion— Chore ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 || * This statute also provides form language that complies with this requirement if a document is executed within the United States. “I declare (or certify, verify, or state) under penalty of perjury 28 | that the foregoing is true and correct. Executed on (date). 28 U.S.C. § 1746(2).