Benyamini v. Manjuano et al

Filing 197

ORDER Permitting Plaintiff to Withdraw Opposition, and File Amended Opposition, if he so Wishes signed by Magistrate Judge Gary S. Austin on 08/10/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,
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Plaintiff,
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v.
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D. MANJUANO, et al.,
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Defendants.
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____________________________________)

1:06-cv-01096 AWI GSA PC
ORDER PERMITTING PLAINTIFF
TO WITHDRAW OPPOSITION, AND
FILE AMENDED OPPOSITION, IF
HE SO WISHES

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Plaintiff is a state prisoner proceeding pro se in this civil rights action. This proceeding
was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
On January 6, 2012, Defendants filed a motion for summary judgment, which is now

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pending. On March 2, 2012, Plaintiff filed an opposition to the motion. On September 17, 2009,

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Plaintiff was served with a Rand warning, informing Plaintiff of his rights and responsibilities in

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opposing a motion for summary judgment. In light of the Ninth Circuit’s decision in Woods v.

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Carey, 684 F.3d 934 (9th Cir. 2012), Plaintiff will be provided an opportunity to file supplemental

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briefing in opposition to the pending motion for summary judgment in this action.

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In Woods, the Ninth Circuit required that a prisoner proceeding pro se with a civil rights

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action, such as Plaintiff, be provided with “fair notice” of the requirements for opposing a motion

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for summary judgment at the time the motion is brought. Woods, 683 F.3d at 684. Thus, the

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notice given by the Court in this case almost three years ago does not suffice.

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The Court finds good cause at this juncture to open a thirty-day time period for Plaintiff

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to file further opposition to the pending motion for summary judgment, if he so wishes. The

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Court will not consider multiple oppositions, however, and Plaintiff has two options upon receipt

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of this order. Plaintiff may either (1) stand on his previously filed opposition or (2) withdraw it

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and file an amended opposition. The amended opposition, if any, must be complete in and of

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itself and must not refer back to any of the opposition documents filed by Plaintiff on March 2,

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2012.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff may, within thirty days of the date of service of this order, withdraw his

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opposition and file an amended opposition to Defendants’ motion for summary judgment.
2. If Plaintiff does not file an amended opposition in response to this order, his existing
opposition will be considered in resolving Defendants’ motion for summary judgment.
3. If Plaintiff elects to file an amended opposition, Defendants may file a reply pursuant
to Local Rule 230(l).

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IT IS SO ORDERED.
Dated:
6i0kij

August 10, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Local Rule 220 provides, in part, “Unless prior approval to the contrary is obtained from the Court, every
pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order
shall be retyped and filed so that it is complete in itself without reference to the prior or suspended pleading. No
pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings
shall contain copies of all exhibits referred to in the changed pleading.”

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