Free Order on Motion for Extension of Time - District Court of Arizona - Arizona

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Barry Northcross Patterson, Plaintiff, v. CO Maciel, et al, Defendants.

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CIV 03-2179 PHX PGR (VAM) O R D E R

On July 14, 2005 , defendants (Maciel, Klein, Schriro, Walker and Schmier) filed a Motion to Dismiss and Motion for Summary Judgment pursuant to Rules 12(b) and 56, Federal Rules of Civil Procedure. NOTICE--WARNING TO PLAINTIFF THIS NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT1 The defendants' Motion for Summary Judgment seeks 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, the party who asked for summary judgment is entitled to

Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998). Document 34 Filed 07/26/2005 Page 1 of 5

Case 2:03-cv-02179-PGR-VAM

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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. specific facts in declarations, Instead, you must set out answers to

depositions,

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. LRCiv 56.1 of the Rules of Practice of the United States District Court for the District of Arizona also requires, in

addition, that you include as a part of your opposition to a

Motion

for Summary Judgment a separate statement of facts in opposition to the Motion for Summary Judgment. (a) Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of the motion. The specific facts shall be set forth in serial fashion and not in narrative form. As to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.). Any party opposing a motion for summary judgment must comply with the foregoing in setting forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party. In the alternative, the movant and the party opposing the motion shall jointly file a stipulation signed by the parties setting forth a statement of the stipulated facts if the parties agree there is no genuine issue of any material fact. As to any stipulated facts, the parties so stipulating may state that their stipulations are entered into only for the 2 Case 2:03-cv-02179-PGR-VAM Document 34 Filed 07/26/2005 Page 2 of 5

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purposes of the motion for summary judgment and are not intended to be otherwise binding. Additional provisions of LRCiv 7.2, Rules of Practice of the

3 United States District Court for the District of Arizona are as 4 follows: 5 Subparagraph (e) of that Rule provides: 6 7 8 9 10 11 12 13 14 15 16 If defendants' Motion to Dismiss seeks dismissal of your 17 complaint for your failure to exhaust all available administrative 18 remedies as required by 42 U.S.C. § 1997e(a), the Court may consider 19 sworn 20 complaint. 21 demonstrating 22 remedies, your complaint will be dismissed without prejudice unless 23 you produce copies of your grievances and grievance appeals or other 24 admissible evidence sufficient to show that you did exhaust all 25 available administrative remedies. 26 (9th Cir. 2003). 27 28 Case 2:03-cv-02179-PGR-VAM 3 Document 34 Filed 07/26/2005 Page 3 of 5 Wyatt v. Terhune, 315 F.3d 1108 that you failed to exhaust your administrative Moreover, if defendants produce admissible evidence declarations or other admissible evidence beyond your Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a reply including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. Subparagraph (i) of LRCiv 7.2 provides: If a motion does not conform in all substantial respects with the requirements of this Local Rule, or if the opposing party does not serve and file the required answering memoranda, or if counsel for any party fails to appear at the time and place assigned for oral argument, such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.

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It is plaintiff's obligation to timely respond to all motions. The failure of plaintiff to respond to defendants' Motion to Dismiss and Motion for Summary Judgment may in the discretion of the Court be deemed a consent to the granting of the Motions without further notice, and judgment may be entered dismissing the complaint and action with prejudice pursuant to LRCiv 7.2(i). Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam). On July 14, 2005, defendants filed a Motion for Extension of to Supplement Motion for Summary Judgment (Doc. 31). See Brydges v.

Defendants request additional time to supplement their Motion as defendant Maciel is on extended medical leave and will be unable to file his affidavit to the Motion for Summary Judgment until his return to work. The Motion will be granted.

On July 18, 2005, defendants filed a Motion to Stay Discovery until the Court has ruled on the pending Motion to Dismiss and Motion for Summary Judgment. (Doc. 32). A review of the docket

reveals that the discovery request cutoff date was March 31, 2005 and discovery disputes were to be brought to the attention of the Court by May 31, 2005. Therefore, the discovery deadlines have run

and defendants' Motion will be denied as moot. IT IS THEREFORE ORDERED that plaintiff shall have until

September 19, 2005 within which to file a response to defendants' Motion to Dismiss and Motion for Summary Judgment, together with supporting affidavits or other appropriate exhibits and a separate Statement of Facts. file a reply. IT IS FURTHER ORDERED granting defendants' Motion for Extension 4 Case 2:03-cv-02179-PGR-VAM Document 34 Filed 07/26/2005 Page 4 of 5 Defendants shall have until October 3, 2005 to

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of Time to Supplement.

(Doc. 31).

Defendant shall have until

September 9, 2005 to file defendant Maciel's affidavit. IT IS FURTHER ORDERED denying as moot defendants' Motion to Stay Discovery. (Doc. 32).

DATED this 26th day of July, 2005.

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