Jaimes v. Barnes et al

Filing 70

SECOND ORDER DENYING Defendant Barnes' 68 Motion for Summary Judgment without prejudice for failure to provide RAND Notice, signed by Magistrate Judge Stanley A. Boone on 10/13/2016. (7-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN JAIMES, 12 13 14 15 Plaintiff, v. DR. ROBERT J. BARNES, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-00952-LJO-SAB (PC) SECOND ORDER DENYING DEFENDANT BARNES’ MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE FOR FAILURE TO PROVIDE RAND NOTICE [ECF No. 68] Plaintiff Juan Jaimes is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On October 3, 2016, Defendant Barnes filed a motion for summary judgment. (ECF No. 66.) 20 On October 5, 2016, the Court denied Defendant’s motion for summary judgment, without prejudice, 21 for failure to provide the Rand notice. (ECF No. 67.) 22 23 On October 12, 2016, Defendant re-filed his motion for summary judgment, but neglected again to provide the Rand notice as required under Ninth Circuit precedent. (ECF No. 68.) 24 In Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), the Ninth Circuit held that a pro se 25 prisoner plaintiff must be provided with “fair notice” of the requirements for opposing a motion for 26 summary judgment at the time the motion is brought. Review of the current motion shows that 27 Defendants did not provide Plaintiff with a Rand notice upon the filing of the motion for summary 28 judgment. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Since Defendant failed to provide 1 1 Plaintiff with the required notice concurrent with the filing of the motion, this motion shall be denied 2 without prejudice, subject to refiling with the appropriate notice to Plaintiff. Wood v. Carey, 684 F.3d 3 at 936, 938-941. If Defendant re-files the motion for summary judgment without the adequate Rand 4 notice, the motion is subject to denial without leave to re-file. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Defendant Barnes’ motion for summary judgment is DENIED WITHOUT PREJUDICE; 7 2. 8 Defendant shall file their motion for summary judgment within seven (7) days of the date of entry of this order and shall provide Plaintiff with the appropriate Rand notice; 9 and 10 3. 11 Plaintiff shall file his opposition to the motion for summary judgment within twenty one (21) days of the date of service of the motion. 12 13 14 IT IS SO ORDERED. 15 Dated: 16 October 13, 2016 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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