Oliverez v. Aibitre et al

Filing 48

ORDER Permitting Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Separately Issued Summary Judgment Notice, signed by Magistrate Judge Sheila K. Oberto on 7/11/2012. 30-day deadline. (Jessen, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

LOUIS OLIVEREZ, JR.,

10
11
12

CASE NO. 1:09-cv-00352-LJO-SKO PC

Plaintiff,

ORDER PERMITTING PLAINTIFF
OPPORTUNITY TO WITHDRAW
OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF SEPARATELYISSUED SUMMARY JUDGMENT NOTICE

v.
BEN ALBITRE, et al.,

13

Defendants.

(Doc. 43)

14

THIRTY-DAY DEADLINE
/

15
16

Plaintiff Louis Oliverez, Jr. is a state prisoner proceeding pro se and in forma pauperis in this

17

civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants

18

Albitre and Adams for violation of the Free Exercise Clause of the First Amendment.

19

On December 8, 2011, Defendants filed a motion for summary judgment and on January 18,

20

2012, Defendants filed a supplement identifying two additional district court cases in support of their

21

motion. Plaintiff filed an opposition on February 3, 2012, Defendants filed a reply on February 10,

22

2012, and the motion was submitted under Local Rule 230(l).

23

However, in light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012

24

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

25

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

26

notice given in this case some two years prior does not suffice. In bringing their motion, Defendants

27

notified Plaintiff of the cases in which he would find the law governing his obligations but that, too,

28

does not suffice. Id.
1

1

By separate order issued concurrently with this order, the Court provided the requisite notice.

2

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

3

receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition

4

or (2) withdraw it and file an amended opposition.1

5

Accordingly, it is HEREBY ORDERED that:

6

1.

7

Plaintiff may, within thirty (30) days from the date of service of this order, withdraw
his opposition and file an amended opposition;

8

2.

9

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

10

judgment; and

11

3.

12

If Plaintiff elects to file an amended opposition, Defendants’ existing reply will not
be considered and they may file an amended reply pursuant to Local Rule 230(l).

13
14
15
16

IT IS SO ORDERED.

17

Dated:
ie14hj

July 11, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28

1

The Court notes the comprehensive nature of Plaintiff’s existing opposition, but its adequacy is apparently
irrelevant. Plaintiff is entitled to an opportunity to file an amended opposition following “fair notice” to him of the
requirements for opposing a summary judgment motion. W oods, 2012 W L 2626912, at *5.

2