Opinion
ORDER: (1) VACATING HEARING DATE AND RESETTING HEARING DATE FOR JULY 18, 2011; AND (2) PROVIDING NOTICE PURSUANT TO KLINGELE/RAND TO PRO SE PRISONER OF REQUIREMENTS FOR OPPOSING SUMMARY JUDGMENT
M. JAMES LORENZ, District Judge.
This notice is required to be given to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988):
Klingele and Rand together require the district court "as a bare minimum, " to ensure that a pro se prisoner has "fair notice of the requirements of the summary judgment rule." Klingele, 849 F.2d at 411 (quotations omitted). "It would not be realistic to impute to a prison inmate... an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature, on affidavits, so that not submitting counter affidavits is the equivalent of not presenting any evidence at trial." Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (internal quotation omitted). Actual knowledge or any level of legal sophistication does not obviate the need for judicial explanation. Rand, 113 F.3d at 1523 (citing Klingele, 849 F.2d at 411-12). Thus, the district court must ensure that the prisoner knows "about his right to file counter-affidavits or other responsive materials and [to] alert[] [him] to the fact that his failure to so respond might result in the entry of summary judgment against him.'" Jacobsen, 790 F.2d at 1365 n.8 (quoting Klingele, 849 F.2d at 411).
Defendants have filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56, by which they seek to have your case dismissed. A Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a Motion for Summary Judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact- that is, if there is no real dispute about any fact that would affect the result of your case, and the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided by Rule 56(e), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.
Conclusion and Order
Accordingly, IT IS ORDERED that:
(1) Plaintiff's Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment have been calendared for hearing on Monday, July 18, 2011, in Courtroom 14. The previous hearing date of June 6, 2011 is VACATED. Defendants' Opposition to Plaintiff's Motion and Plaintiff's Opposition to Defendants Cross-Motion (including any supporting documents) must be filed with the Court and served on all parties by Tuesday, July 5, 2011. Defendants are instructed that Plaintiff shall not be limited in the amount of copies necessary to prepare his Opposition. See Cal. Code Regs. tit. 15, § 3162(c). If either party chooses not to file an Opposition, that party should file and serve a "Notice of Non-Opposition" by that same date to let both the Court and all parties know that the Motion is unopposed.
If either party does file and serve an Opposition, the other party must file and serve their Reply to that Opposition by Monday, July 11, 2011.
At the time appointed for hearing, the Court will, in its discretion, consider Plaintiff's Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 as submitted on the papers, and will issue its written opinion soon thereafter. Thus, unless otherwise ordered, no appearances are required and no oral argument will be heard.
IT IS SO ORDERED.