Gunn v. Tilton et al

Filing 105

ORDER PERMITTING Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Separately Issued Summary Judgment Notice; Twenty-One Day Deadline signed by Magistrate Judge Gerald B. Cohn on 8/7/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN GUNN,
CASE NO. 1:08-cv-01038-LJO-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.
JAMES TILTON, et al.,

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Defendants.
(Doc. 41; Doc. 100; Doc. 104)

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TWENTY-ONE DAY DEADLINE
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/

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I.

Procedural History and Woods v. Carey

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Plaintiff Kevin Gunn (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”) in this

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civil rights action pursuant to 42 U.S.C. § 1983. On May 19, 2010, Defendants filed a motion for

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summary judgment. Doc. 41. On July 31, 2012, Plaintiff filed an opposition in response to the motion

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for summary judgment. Doc. 100; Doc. 101; Doc. 102; Doc. 103. On August 6, 2012, Defendants filed

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a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 104.

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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. Woods v. Carey, --- F.3d ---, 2012 WL 2626912, at *

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4 (9th Cir. Jul. 6, 2012). In order to address the time delay between providing notice and the filing of
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Defendants’ motion, Defendants filed a notice to Plaintiff, 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 7, 2012
UNITED STATES MAGISTRATE JUDGE

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