Opinion
No. CIV S-05-1499-LKK-CMK-P.
February 28, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On January 17, 2008, the court issued findings and recommendations that defendants' motion for summary judgment (Doc. 87) be granted. On February 26, 2008, the district judge assigned to this case issued an order declining to adopt the findings and recommendations. In that order, the district judge noted that plaintiff had filed both substantive objections and an evidentiary objection to the declaration of Dr. Gabriel Borges, which had been offered in support of defendants' motion. Upon review of the entire file, including plaintiff's objections, the district judge declined to adopt the recommendations based on the conclusion that Dr. Borges' declaration lacked evidentiary weight. Specifically, the district judge stated: "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." The district judge did not deny summary judgment, but referred the matter back to the undersigned for "proceedings consistent with this order."
In light of the district judge's order, the court hereby directs defendants to submit a properly attested declaration of Dr. Borges. In particular, within ten (10) days of the date of this order, the declaration shall be re-submitted under penalty of perjury as to the truth of the matters stated therein.
IT IS SO ORDERED.