Lombardelli v. Halsey, et al.

Filing 97

ORDER GRANTING Plaintiff Leave to File Amended Opposition or Proceed with Current 96 Opposition; Response Due within Thirty Days signed by Magistrate Judge Dennis L. Beck on 8/2/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALFRED C. LOMBARDELLI,

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Plaintiff,

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v.

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Case No. 1:08-cv-00658-AWI-DLB PC
ORDER GRANTING PLAINTIFF LEAVE
TO FILE AMENDED OPPOSITION OR
PROCEED WITH CURRENT
OPPOSITION (ECF No. 96)

K. HALSEY, et al.,
RESPONSE DUE WITHIN THIRTY DAYS

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Defendants.

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Plaintiff Alfred C. Lombardelli (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding against

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Defendants E. Ortiz, S. Smyth, I. Sanchez, K. Halsey, K. Carter, and R. Vogel for violations of the

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First and Eighth Amendment. Pending before the Court is Defendants’ motion, filed July 31, 2012,

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to grant Plaintiff additional time to supplement his opposition to Defendants’ motion for summary

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judgment. ECF No. 96. Defendants filed a motion for summary judgment on January 13, 2012.

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ECF No. 76.
In light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL

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2626912, at *5 (9th Cir. Jul. 6, 2012), Plaintiff must be provided with “fair notice” of the

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requirements for opposing a motion for summary judgment at the time the motion is brought. 1

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Plaintiff had received notice of the requirements to oppose a motion for summary judgment on January 10, 2012, three
days prior to Defendants’ motion being filed. Additionally, Plaintiff’s opposition is in compliance with Local Rule
260(b) and Rule 56(c) of the Federal Rules of Civil Procedure. See ECF Nos. 85, 86. Nonetheless, the Court will grant
Plaintiff leave to amend his opposition.

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Defendants provide notice pursuant to Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en

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banc) in their pending motion. Defs.’ Mot. 2:2-4:4, ECF No. 96. The Court will not consider

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multiple oppositions, however, and Plaintiff has two options upon receipt of this order. Plaintiff may

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either (1) stand on his previously-filed opposition or (2) withdraw it and file an amended opposition.

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If Plaintiff files an amended opposition, the pending Findings and Recommendation will be

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withdrawn.

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Accordingly, it is HEREBY ORDERED that:

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1.

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his opposition and file an amended opposition;

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Plaintiff may, within thirty (30) days from the date of service of this order, withdraw

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If Plaintiff does not file an amended opposition in response to this order, his existing

opposition will be considered in resolving Defendants’ motions for summary judgment; and

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3.

If Plaintiff elects to file an amended opposition, Defendants’ existing reply will not be

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considered and they may file an amended reply within fourteen (14) days from the date of service of

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Plaintiff’s amended opposition.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

August 2, 2012

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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