Trujillo v. Yates

Full title: Daniel Trujillo, Plaintiff, v. James Yates, et al., Defendants

Court: United States District Court, E.D. California, Fresno Division

Date published: Mar 12, 2009

No. CV 07-1236 JMR (E.D. Cal. Mar. 12, 2009)

Opinion

No. CV 07-1236 JMR.

March 12, 2009

ORDER

JOHN ROLL, District Judge

Defendants have filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (Doc. #25). The Court is responsible for making a pro se prisoner "aware of the requirements and consequences" of a motion for summary judgment.Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998). In particular, a prisoner must be "`informed of his or her right to file counter-affidavits or other responsive evidentiary materials and be alerted to the fact that failure to do so might result in the entry of . . . judgment against the prisoner.'" Wyatt v. Terhune, 315 F.3d 1108, 1114 n. 6 (9th Cir. 2003). A prisoner should be notified that if he "fails to controvert the moving party with opposing counter-affidavits or other evidence, the moving party's evidence might be taken as the truth, and final judgment may be entered against the prisoner." Id.

NOTICE — WARNING TO PLAINTIFF THIS NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT

The Defendants' Motion for Summary Judgment seeks to have your case dismissed. A motion for summary judgment under Federal Rule of Civil Procedure 56 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, 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 in 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.

Local Rule of Civil Procedure 56-260(b) provides the following with respect to opposing a motion for summary judgment:

Opposition. Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial. The opposing party may also file a concise "Statement of Disputed Facts," and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication. The opposing party shall be responsible for the filing with the Clerk of all evidentiary documents cited in the opposing papers. See L.R. 5-133(j). If a need for discovery is asserted as a basis for denial of the motion, the party opposing the motion shall provide a specification of the particular facts on which discovery is to be had or the issues on which discovery is necessary.

You must cite to the specific paragraph in your statement of facts that supports any factual claims you make in your memorandum of law. Additionally, any memorandum of law submitted in opposition to the motion for summary judgment must comply with the appropriate page limitations contained in the local rules.

You must timely respond to all motions. The Court may, in its discretion, treat your failure to respond to Defendants' Motion for Summary Judgment as a consent to the granting of that motion without further notice, and judgment may be entered dismissing this action with prejudice. See LR 78-230(m); Brydges v. Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam).

Accordingly,

IT IS ORDERED that Plaintiff must file a response to Defendants' Motion for Summary Judgment, together with a separate Statement of Facts and supporting affidavits or other appropriate exhibits, no later than April 10, 2009. IT IS FURTHER ORDERED that Defendants may file a reply within 10 days after service of Plaintiff's response.

IT IS FURTHER ORDERED that the Motion for Summary Judgment will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court.