Holt v. Nicholas et al

Filing 89

ORDER Permitting Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Separately-Issued Summary Judgment Notice 79 , 86 TWENTY-ONE DAY DEADLINE, signed by Magistrate Judge Gerald B. Cohn on 8/8/12. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

VIRGIL E. HOLT,
CASE NO. 1:09-cv-00800-AWI-GBC (PC)

12

Plaintiff,

13
14

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.
R. NICHOLAS, et al.,

15

Defendants.
(Doc. 79; Doc. 86)

16
/

TWENTY-ONE DAY DEADLINE

17
18
I.

Procedural History and Woods v. Carey

19
Plaintiff Virgil E. Holt, a state prisoner proceeding pro se and in forma pauperis, filed this civil
20
rights action pursuant to 42 U.S.C. § 1983 on May 4, 2009. Doc. 1. On June 11, 2012, Defendants filed
21
a motion for summary judgment. Doc. 79. On August 1, 2012, Defendants filed a notice pursuant to
22
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 86.
23
On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for
24
opposing a defendant’s motion for summary judgment should be issued contemporaneously when a
25
defendant files a motion for summary judgment. Woods v. Carey, --- F.3d ---, 2012 WL 2626912, at *
26
4 (9th Cir. Jul. 6, 2012). In order to address the time delay between providing notice and the filing of
27
Defendants’ motion, Defendants filed a notice to Plaintiff, in accordance with Woods. Doc. 86.
28
///
1

1

II.

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

2

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

3

In light of the separately-issued notice pursuant to Woods, the Court will provide Plaintiff with

4

two options upon receipt of this order. Plaintiff may either: 1) stand on his previously-filed opposition;

5

or 2) withdraw the existing opposition and file an amended opposition.

6

Accordingly, it is HEREBY ORDERED that:

7

1.

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

8

to:

9

a.

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

10

b.

Withdraw his opposition and file an amended opposition;

11

2.

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

12

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

13

Defendants’ motion for summary judgment;

14

3.

15

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

16

4.

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

17
18

IT IS SO ORDERED.

19
20

Dated:
0jh02o

August 8, 2012
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
2