Mallett v. McGuinness, et al.

Filing 51

ORDER signed by Magistrate Judge Gerald B. Cohn on 7/23/2012 providing Plaintiff option to (1) Stand on existing opposition to motion for summary judgment or (2) File amended opposition per amended second informational order. (21-Day Deadline to respond).(Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
JAMES ERIC MALLETT,

CASE NO. 1:07-cv-00721-LJO-GBC (PC)

9
Plaintiff,
10
v.
11
J. McGUINNESS, et al.,
12

ORDER PROVIDING PLAINTIFF OPTION TO
(1) STAND ON EXISTING OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT OR
(2) FILE AMENDED OPPOSITION PER
AMENDED SECOND INFORMATIONAL
ORDER

Defendants.
13
14

Docs. 43, 46
/ TWENTY-ONE DAY DEADLINE

15
16
17
18

I. Procedural History, Woods v. Carey, and Contemporaneous Notice
On May 16, 2007, Plaintiff James Eric Mallett (“Plaintiff”), a state prisoner proceeding pro
se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.

19

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

20

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

21

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

22

v. Carey, --- F.3d ---, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012).

23

On December 15, 2010, the Court issued a second informational order, advising Plaintiff that

24

Defendant may file a motion for summary judgment and how Plaintiff must oppose the motion in

25

order to avoid dismissal, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 31. On

26

April 30, 2012, Defendant filed a motion for summary judgment. Doc. 43. On May 23, 2012,

27

Plaintiff filed an opposition to the motion for summary judgment. Doc. 46. On May 30, 2012,

28

Defendant filed a Reply to Plaintiff’s opposition. Doc. 49. In order to address the time delay between
Page 1 of 2

1

providing notice and the filing of Defendant’s motion, the Court issued an amended second

2

informational order to Plaintiff, in accordance with Woods.

3

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

4

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

5

In light of the separately-issued amended second informational order and notice pursuant to

6

Woods, the Court will provide Plaintiff with two options upon receipt of the notice and this order.

7

Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw the existing

8

opposition and file an amended opposition.

9

Accordingly, it is HEREBY ORDERED that:

10

1.

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

11

elect to:

12

a.

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

13

b.

Withdraw his opposition and file an amended opposition;

14

2.

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

15

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

16

resolving Defendant’s motion for summary judgment;

17

3.

18

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

19

4.

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

20
21

IT IS SO ORDERED.

22
23

Dated:
7j8cce

July 23, 2012
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
Page 2 of 2