Caver v. Gomez et al

Filing 81

ORDER Requiring Defendants To Serve Plaintiff With Rand Notice Within Ten Days And Providing Plaintiff With Opportunity To File Amended Opposition (Docs. 76 and 78 ), signed by Magistrate Judge Sheila K. Oberto on 2/19/2015. (Amended Opposition Deadline: 3/23/2015) (Fahrney, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DENELL CAVER, Plaintiff, 11 12 v. 13 E. GOMEZ, et al., 14 Defendants. _____________________________________/ Case No. 1:11-cv-01025-AWI-SKO (PC) ORDER REQUIRING DEFENDANTS TO SERVE PLAINTIFF WITH RAND NOTICE WITHIN TEN DAYS AND PROVIDING PLAINTIFF WITH OPPORTUNITY TO FILE AMENDED OPPOSITION (Docs. 76 and 78) 15 16 Plaintiff Denell Caver (“Plaintiff”), a state prisoner proceeding pro se and in forma 17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2011. This action 18 is proceeding on Plaintiff’s second amended complaint, filed on April 10, 2012, against 19 Defendants Gomez, Stark, and Garcia (“Defendants”) for acting with deliberate indifference to 20 Plaintiff’s safety, in violation of the Eighth Amendment of the United States Constitution. 21 On January 23, 2015, Defendants filed a motion for summary judgment which included the 22 representation that a Rand notice would be served concurrently with the motion. Woods v. Carey, 23 684 F.3d 934, 935-36 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). On 24 February 11, 2015, Plaintiff filed an opposition in which he stated he was not served with a Rand 25 notice, and the Court was not able to locate the notice, either. Plaintiff is entitled to service of the 26 notice concurrently with the motion, Woods, 684 F.3d at 938-41; Rand, 154 F.3d at 960-61, and 27 this deficiency entitles him to an opportunity to file an amended opposition, Labatad v. 28 Corrections Corp. of America, 714 F.3d 1155, 1159 (9th Cir. 2013) (per curiam). 1 Accordingly, it is HEREBY ORDERED that: 2 1. Within ten (10) days from the date of service of this order, Defendants shall serve 3 Plaintiff with a Rand notice; 4 2. Plaintiff may either (1) stand on the opposition he filed on February 11, 2015, or 5 (2) file an amended opposition that is complete within itself;1 and 6 3. If Plaintiff elects to file an amended opposition once he receives the Rand notice, 7 he must do so within thirty (30) days from the date of service of the notice. 8 9 IT IS SO ORDERED. Dated: 10 February 19, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff is not required to file an amended opposition, but he is entitled to the opportunity to do so and the Court will not consider two separate oppositions. Therefore, if Plaintiff chooses to file an amended opposition, the opposition filed on February 11, 2015, will not be considered and it will be ordered stricken from the record. 2

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