Opinion
No. CIV S-05-1499-LKK-CMK-P.
February 25, 2008
ORDER
The plaintiff, a state prisoner proceeding pro se, has filed suit under 42 U.S.C. § 1983 for alleged violations of his rights under the First and Eighth Amendments. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On October 19, 2007, the defendants moved for summary judgment on the plaintiff's claims and on December 21, 2007, the plaintiff filed an opposition to the motion. The Magistrate Judge filed findings and recommendations that were served on the plaintiff and that contained notice to the plaintiff that any objections to the findings and recommendations were to be filed within twenty days. The plaintiff has filed objections to the findings and recommendations, including an objection to the Magistrate Judge's reliance on a deposition by Dr. Gabriel Borges offered to support defendants' motion. The court has reviewed the file. As explained below, the court declines to adopt the Magistrate Judge's findings and recommendations.
The Magistrate Judge had previously granted the plaintiff an extension of time to file his opposition.
The Magistrate Judge recommended granting the defendants' motion, basing the recommendation in part on the declaration of Dr. Gabriel Borges offered in support of the defendants' motion.See Findings and Recommendations, January 17, 2008, at 8, 13. Dr. Borges' declaration, however, is not declared to be true under penalty of perjury and therefore it cannot be relied upon by the court. Motions for summary judgment may be supported by affidavits or declarations sworn to be true under penalty of perjury. Fed.R.Civ.P. 56(e); United States for Use and Benefit of Austin v. W. Elec. Co., 337 F.2d 568, 574-75 (9th Cir. 1964);see also 28 U.S.C. 1746 (unsworn declarations must be "subscribed" by the declarant "as true under penalty of perjury"). Here, Dr. Borges did not swear under penalty of perjury that the statements made in his declaration were true; instead, he only "declare[d] under penalty of perjury that the . . . declaration was executed" on a particular date. See Declaration of Dr. Gabriel Borges In Support of Motion for Summary Judgment. Consequently, his declaration has no evidentiary force. The court cannot adopt those findings of the Magistrate Judge that were based on this declaration, nor can it adopt the Magistrate Judge's recommendation for the disposition of the motion, as its recommendation was influenced by Dr. Borges' statements.
For the reasons set forth above, the court DECLINES to adopt the Magistrate Judge's January 17, 2008 findings and recommendations and REFERS the case to the Magistrate Judge for proceedings consistent with this order.
IT IS SO ORDERED.