1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLAN FLETCHER, Case No. 1:22-cv-00249-JLT-BAM (PC)
12 Plaintiff, SECOND INFORMATIONAL ORDER – NOTICE AND WARNING OF 13 v. REQUIREMENTS FOR OPPOSING DEFENDANTS’ SUMMARY JUDGMENT 14 CLENDENIN, et al., MOTION
15 Defendants. (ECF No. 44)
16 TWENTY-ONE (21) DAY DEADLINE
18 Plaintiff Allan Fletcher (“Plaintiff”) is a civil detainee proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to 20 the California Welfare and Institutions Code § 6600 et seq. are considered civil detainees and are 21 not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 22 1136, 1140 (9th Cir. 2000). This action proceeds on Plaintiff’s first amended complaint against 23 Defendants Clendenin and Price for failure to treat Plaintiff under the Fourteenth Amendment 24 Due Process Clause due to their official policy. 25 I. Rand Notice 26 Defendants filed a motion for summary judgment on August 26, 2024. (ECF No. 44.) 27 Upon review of the motion, the Court finds that although a Rand warning was filed, the warning 28 failed to advise Plaintiff of the applicability and requirements of Eastern District of California 1 Local Rule 260. (ECF No. 44, pp. 1–3.) Consequently, pursuant to Woods v. Carey, 684 F.3d 2 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 3 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies Plaintiff of the following rights and 4 requirements for opposing the motion: 5 1. Unless otherwise ordered, all motions for summary judgment are briefed pursuant 6 to Local Rule 230(l). 7 2. Plaintiff is required to file an opposition or a statement of non-opposition to 8 Defendant’s motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 9 opposition or a statement of non-opposition to the motion, this action may be dismissed, with 10 prejudice, for failure to prosecute. The opposition or statement of non-opposition must be filed 11 not more than 21 days after the date of service of the motion. Id. 12 3. A motion for summary judgment is a request for judgment on some or all of 13 Plaintiff’s claims in favor of Defendant without trial. Fed. R. Civ. P. 56(a). Defendant’s motion 14 sets forth the facts which they contend are not reasonably subject to dispute and that entitle them 15 to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed 16 Facts. Local Rule 260(a). 17 4. Plaintiff has the right to oppose a motion for summary judgment. To oppose the 18 motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 19 Defendant’s motion but argue that Defendant is not entitled to judgment as a matter of law. 20 5. In the alternative, if Plaintiff does not agree with the facts set forth in Defendant’s 21 motion, he may show that Defendant’s facts are disputed in one or more of the following ways: 22 (1) Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the 23 opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the 24 matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or 25 opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth 26 the facts which Plaintiff believes prove his claims;1 (3) Plaintiff may rely upon written records but
27 1 A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2) which are based on the personal knowledge of the person giving the statement, and (3) to which the person giving the statement is 28 competent to testify. 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4). A declaration must be dated and signed under 1 Plaintiff must prove that the records are what he claims they are;2 or (4) Plaintiff may rely upon 2 all or any part of the transcript of one or more depositions, answers to interrogatories, or 3 admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendant’s motion 4 with declarations or other evidence, Defendant’s evidence will be taken as truth, and final 5 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 6 6. In opposing Defendant’s motion for summary judgment, Local Rule 260(b) 7 requires Plaintiff to reproduce Defendant’s itemized facts in the Statement of Undisputed Facts 8 and admit those facts which are undisputed and deny those which are disputed. If Plaintiff 9 disputes (denies) a fact, Plaintiff must cite to the evidence used to support that denial (e.g., 10 pleading, declaration, deposition, interrogatory answer, admission, or other document). Local 11 Rule 260(b). 12 7. If discovery has not yet been opened or if discovery is still open and Plaintiff is 13 not yet able to present facts to justify the opposition to the motion, the Court will consider a 14 request to postpone consideration of Defendant’s motion. Fed. R. Civ. P. 56(d). Any request to 15 postpone consideration of Defendant’s motion for summary judgment must include the following: 16 (1) a declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, 17 (2) a showing that the facts exist, and (3) a showing that the facts are essential to opposing the 18 motion for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 19 2009); Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir. 2006); 20 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion 21 for summary judgment must identify what information is sought and how it would preclude 22 summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100–01; Margolis v. 23 Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 24 8. Unsigned declarations will be stricken, and declarations not signed under penalty 25 of perjury have no evidentiary value.
26 penalty of perjury as follows: “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746. 27
2 Sworn or certified copies of all papers referred to in the declaration must be included and served on the opposing 28 party. Fed. R. Civ. P. 56(e). 1 9.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLAN FLETCHER, Case No. 1:22-cv-00249-JLT-BAM (PC)
12 Plaintiff, SECOND INFORMATIONAL ORDER – NOTICE AND WARNING OF 13 v. REQUIREMENTS FOR OPPOSING DEFENDANTS’ SUMMARY JUDGMENT 14 CLENDENIN, et al., MOTION
15 Defendants. (ECF No. 44)
16 TWENTY-ONE (21) DAY DEADLINE
18 Plaintiff Allan Fletcher (“Plaintiff”) is a civil detainee proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to 20 the California Welfare and Institutions Code § 6600 et seq. are considered civil detainees and are 21 not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 22 1136, 1140 (9th Cir. 2000). This action proceeds on Plaintiff’s first amended complaint against 23 Defendants Clendenin and Price for failure to treat Plaintiff under the Fourteenth Amendment 24 Due Process Clause due to their official policy. 25 I. Rand Notice 26 Defendants filed a motion for summary judgment on August 26, 2024. (ECF No. 44.) 27 Upon review of the motion, the Court finds that although a Rand warning was filed, the warning 28 failed to advise Plaintiff of the applicability and requirements of Eastern District of California 1 Local Rule 260. (ECF No. 44, pp. 1–3.) Consequently, pursuant to Woods v. Carey, 684 F.3d 2 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 3 849 F.2d 409 (9th Cir. 1988), the Court hereby notifies Plaintiff of the following rights and 4 requirements for opposing the motion: 5 1. Unless otherwise ordered, all motions for summary judgment are briefed pursuant 6 to Local Rule 230(l). 7 2. Plaintiff is required to file an opposition or a statement of non-opposition to 8 Defendant’s motion for summary judgment. Local Rule 230(l). If Plaintiff fails to file an 9 opposition or a statement of non-opposition to the motion, this action may be dismissed, with 10 prejudice, for failure to prosecute. The opposition or statement of non-opposition must be filed 11 not more than 21 days after the date of service of the motion. Id. 12 3. A motion for summary judgment is a request for judgment on some or all of 13 Plaintiff’s claims in favor of Defendant without trial. Fed. R. Civ. P. 56(a). Defendant’s motion 14 sets forth the facts which they contend are not reasonably subject to dispute and that entitle them 15 to judgment as a matter of law. Fed. R. Civ. P. 56(c). This is called the Statement of Undisputed 16 Facts. Local Rule 260(a). 17 4. Plaintiff has the right to oppose a motion for summary judgment. To oppose the 18 motion, Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in 19 Defendant’s motion but argue that Defendant is not entitled to judgment as a matter of law. 20 5. In the alternative, if Plaintiff does not agree with the facts set forth in Defendant’s 21 motion, he may show that Defendant’s facts are disputed in one or more of the following ways: 22 (1) Plaintiff may rely upon statements made under the penalty of perjury in the complaint or the 23 opposition if (a) the complaint or opposition shows that Plaintiff has personal knowledge of the 24 matters stated and (b) Plaintiff calls to the Court’s attention those parts of the complaint or 25 opposition upon which Plaintiff relies; (2) Plaintiff may serve and file declarations setting forth 26 the facts which Plaintiff believes prove his claims;1 (3) Plaintiff may rely upon written records but
27 1 A declaration is a written statement setting forth facts (1) which are admissible in evidence, (2) which are based on the personal knowledge of the person giving the statement, and (3) to which the person giving the statement is 28 competent to testify. 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4). A declaration must be dated and signed under 1 Plaintiff must prove that the records are what he claims they are;2 or (4) Plaintiff may rely upon 2 all or any part of the transcript of one or more depositions, answers to interrogatories, or 3 admissions obtained in this proceeding. Should Plaintiff fail to contradict Defendant’s motion 4 with declarations or other evidence, Defendant’s evidence will be taken as truth, and final 5 judgment may be entered without a full trial. Fed. R. Civ. P. 56(e). 6 6. In opposing Defendant’s motion for summary judgment, Local Rule 260(b) 7 requires Plaintiff to reproduce Defendant’s itemized facts in the Statement of Undisputed Facts 8 and admit those facts which are undisputed and deny those which are disputed. If Plaintiff 9 disputes (denies) a fact, Plaintiff must cite to the evidence used to support that denial (e.g., 10 pleading, declaration, deposition, interrogatory answer, admission, or other document). Local 11 Rule 260(b). 12 7. If discovery has not yet been opened or if discovery is still open and Plaintiff is 13 not yet able to present facts to justify the opposition to the motion, the Court will consider a 14 request to postpone consideration of Defendant’s motion. Fed. R. Civ. P. 56(d). Any request to 15 postpone consideration of Defendant’s motion for summary judgment must include the following: 16 (1) a declaration setting forth the specific facts Plaintiff hopes to elicit from further discovery, 17 (2) a showing that the facts exist, and (3) a showing that the facts are essential to opposing the 18 motion for summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 19 2009); Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir. 2006); 20 California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The request to postpone the motion 21 for summary judgment must identify what information is sought and how it would preclude 22 summary judgment. Blough, 574 F.3d at 1091 n.5; Tatum, 441 F.3d at 1100–01; Margolis v. 23 Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Local Rule 260(b). 24 8. Unsigned declarations will be stricken, and declarations not signed under penalty 25 of perjury have no evidentiary value.
26 penalty of perjury as follows: “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746. 27
2 Sworn or certified copies of all papers referred to in the declaration must be included and served on the opposing 28 party. Fed. R. Civ. P. 56(e). 1 9. The failure of any party to comply with this order, the Federal Rules of Civil 2 Procedure, or the Local Rules of the Eastern District of California may result in the imposition of 3 sanctions including but not limited to dismissal of the action or entry of default. 4 II. Deadline to File Opposition 5 In light of Plaintiff’s pro se status and Defendants’ failure to properly file a Rand notice 6 with the motion for summary judgment, the Court finds it appropriate to extend the deadline for 7 Plaintiff to file his opposition to Defendant’s motion for summary judgment. 8 III. Conclusion and Order 9 Based on the foregoing, IT IS HEREBY ORDERED as follows: 10 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall file an 11 opposition to Defendants’ motion for summary judgment, in compliance with Federal 12 Rule of Civil Procedure 56 and Eastern District of California Local Rule 260; and 13 2. Any request for an extension of time of this deadline must be filed on or before it expires 14 and must be supported by good cause. 15 IT IS SO ORDERED. 16
17 Dated: August 27, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18
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