Howard v. Gradtillo et al

Filing 87

ORDER Permitting Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in light of Separately - Issued Summary Judgment 79 , 82 , 86 ,signed by Magistrate Judge Gerald B. Cohn on 08/01/2012. (21) Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLARENCE HOWARD,
CASE NO. 1:05-cv-00906-AWI-GBC (PC)

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Plaintiff,

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O R D E R P E R M IT T IN G P LA IN T IF F
OPPORTUNITY TO WITHDRAW
OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF SEPARATELYISSUED SUMMARY JUDGMENT NOTICE

v.
GRADTILLO, et al.,

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Defendants.
(Doc. 79; Doc. 82; Doc. 86)

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______________________________________/ TWENTY-ONE DAY DEADLINE
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I.

Procedural History and Woods v. Carey

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Plaintiff Clarence Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s
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amended complaint, filed June 22, 2009, against Defendants Bennett, Avila and Jones (“Defendants”)
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for excessive force on April 3, 2003, in violation of the Eighth Amendment. Doc. 22; Doc. 27.
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On May 17, 2010, the Court issued a second informational order, advising Plaintiff that
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Defendants may file a motion for summary judgment and how Plaintiff must oppose the motion in order
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to avoid dismissal, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 30-1. On March
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16, 2012, Defendants filed a motion for summary judgment. Doc. 79. On May 8, 2012, Plaintiff filed
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an opposition and supporting declaration in response to the motion for summary judgment. Doc. 82;
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Doc. 83. On May 11, 2012, Defendants filed a Reply to Plaintiff’s opposition. Doc. 84. On July 2,
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2012, Plaintiff filed a surreply. Doc. 85. On July 18, 2012, Defendants file a notice pursuant to Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 86.

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On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for

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opposing a defendant’s motion for summary judgment should be issued contemporaneously when a

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defendant files a motion for summary judgment, as opposed to a year or more in advance. Woods v.

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Carey, --- F.3d ---, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012). In order to address the time delay

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between providing notice and the filing of Defendants’ motion, Defendants filed a notice to Plaintiff,

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in accordance with Woods.

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II.

Plaintiff has Option to (1) Stand on Existing Opposition to Motion for Summary

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Judgment or (2) File Amended Opposition Per Amended Second Informational Order

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In light of the separately-issued notice pursuant to Woods, the Court will provide Plaintiff with

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two options upon receipt of this order. Plaintiff may either: 1) stand on his previously-filed opposition;

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or 2) withdraw the existing opposition and file an amended opposition.

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Accordingly, it is HEREBY ORDERED that:

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1.

Within twenty-one (21) days from the date of service of this order, Plaintiff may elect

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to:

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a.

Stand on his existing opposition already submitted to the Court; or

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b.

Withdraw his opposition and file an amended opposition;

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2.

If Plaintiff does not elect to file an amended opposition in response to this order within

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twenty-one (21) days, the Court will consider his existing opposition in resolving

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Defendants’ motion for summary judgment;

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3.

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If Plaintiff elects to file an amended opposition, the Court will not consider Defendants’
existing reply; and

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4.

Defendants may file an amended reply pursuant to Local Rule 230(l).

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IT IS SO ORDERED.

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Dated:
0jh02o

August 1, 2012
UNITED STATES MAGISTRATE JUDGE
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