McRae v. Dikran et al

Filing 91

ORDER PERMITTING Plaintiff Opportunity to Withdraw His Oppositions to Defendants' Motions for Summary Judgment, and File Amended Oppositions in Light of RAND Notice, signed by Magistrate Judge Gary S. Austin on 1/11/2021. **Filing Deadline: Thirty (30) days.** (Rivera, O)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL SCOTT McRAE,

12

Plaintiff,

13
14

vs.
BAIRAMIAN DIKRAN, et al.,

15

1:16-cv-01066-NONE-GSA-PC
ORDER PERMITTING PLAINTIFF
OPPORTUNITY TO WITHDRAW HIS
OPPOSITIONS TO DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT,
AND FILE AMENDED OPPOSITIONS IN
LIGHT OF RAND NOTICE

Defendants.
THIRTY- DAY DEADLINE

16
17
18
19
20
21
22

I.

BACKGROUND

23

Michael Scott McRae (“Plaintiff”) is a former federal prisoner proceeding pro se and in

24

forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403

25

U.S. 388 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on

26

March 9, 2018, against defendants Dr. Dikran Bairamian, Dr. Kevin Cuong Nguyen, and Dr.

27

David Betz (collectively, “Defendants”),

28

Amendment and state law claims for medical malpractice and medical battery. (ECF No. 14.)

for inadequate medical care under the Eighth

1

On October 23, 2020, defendant Bairamian filed a motion for summary judgment, (ECF

2

No. 80), and on October 27, 2020, defendant Betz filed a motion for summary judgment, (ECF

3

No. 81). On December 4, 2020, Plaintiff filed a consolidated opposition to both of the motions.

4

(ECF No. 88.) On December 4, 2020, defendant Bairamian filed a reply to the opposition, (ECF

5

No. 87), and on December 10, 2020, defendant Betz filed a reply to the opposition, (ECF No.

6

89).

7

Neither defendant Bairamian nor defendant Betz provided Plaintiff with a Rand2 Notice

8

and Warning, pursuant to the Ninth Circuit’s requirement in Woods v. Carey, 684 F.3d 934 (9th

9

Cir. 2012), informing Plaintiff of his rights and responsibilities in opposing Defendants’ motions

10

for summary judgment. Therefore, the court shall, by this order, provide Plaintiff with a Rand

11

Notice and Warning and allow him an opportunity to withdraw his oppositions to Defendants ’

12

pending motions for summary judgment and file amended oppositions to the pending motions

13

for summary judgment.

14

Plaintiff is advised not to file both of his amended oppositions in one document. The

15

motions for summary judgment are two distinctly separate motions that require different

16

responses.

17

Plaintiff and therefore is discouraged

18

II.

Consolidating both of Plaintiff’s oppositions into one document may prejudice

RAND NOTICE AND WARNING

19

In the Ninth Circuit, when the plaintiff is a prisoner proceeding pro se in a civil rights

20

case, and a defendant files a motion for summary judgment or a motion to dismiss for failure to

21

exhaust administrative remedies, the defendant or the court is required to provide plaintiff with

22

a Notice and Warning informing the plaintiff of his or her rights and responsibilities in opposing

23

the motion. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012).1

24

notify Plaintiff of the following rights and requirements for opposing Defendants’ motions for

25

summary judgment:

The court shall, by this notice,

26
27
28
1

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).

1

NOTICE

2

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

3

Pursuant to Woods v. Carey, the Court now hereby notifies Plaintiff of the following

4

rights and requirements for opposing Defendants’ motions for summary judgment. Woods, 684

5

F.3d 934 (Fair notice of the requirements needed to defeat a defendant’s motion for summar y

6

judgment must be provided to a pro se prisoner litigant in a civil rights case.)

7

fail to provide appropriate notice, “the ultimate responsibility of assuring that the prisoner

8

receives fair notice remains with the district court.” Woods, 684 F.3d at 940.

9

AND

WARNING

OF

REQUIREMENTS

FOR

OPPOSING

If . . . defendants

NOTICE AND WARNING:

10

The defendants have made motions for summary judgment by which

11

they seek to have your case dismissed. A motion for summary judgme nt

12

under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end

13

your case.

14

Rule 56 tells you what you must do in order to oppose a motion for

15

summary judgment. Generally, summary judgment must be granted whe n

16

there is no genuine issue of material fact— that is, if there is no real dispute

17

about any fact that would affect the result of your case, the party who asked

18

for summary judgment is entitled to judgment as a matter of law, which will

19

end your case. When a party you are suing makes a motion for summary

20

judgment that is properly supported by declarations (or other sworn

21

testimony), you cannot simply rely on what your complaint says. Instead,

22

you must set out specific facts in declarations, depositions, answers to

23

interrogatories, or authenticated documents, as provided in Rule [56(c)], 2

24

that contradict the facts shown in the defendants’ declarations and

25

documents and show that there is a genuine issue of material fact for trial. If

26
27
2

28

The substance of Rule 56(e) from the 1998 version, when Rand was decided, has been
reorganized and renumbered with the current version of Rule 56(c).

1

you do not submit your own evidence in opposition, summary judgment, if

2

appropriate, may be entered against you. If summary judgment is granted,

3

your case will be dismissed and there will be no trial.

4

Unless otherwise ordered, all motions for summary judgment shall be

5

briefed pursuant to Local Rule 230(l).

6

opposition or a statement of non-opposition to each of Defendants’ motions

7

for summary judgment.

8

opposition or a statement of non-opposition to the motions, this action may

9

be dismissed, with prejudice, for failure to prosecute . The opposition or

10

statement of non-opposition must be filed not more than 21 days after the

11

date of service of the motion. Id.

12

Plaintiff is required to file an

Local Rule 230(l).

If Plaintiff fails to file an

If responding to Defendants’ motions for summary judgme nt,

13

Plaintiff may not simply rely on allegations in the complaint.

Instead,

14

Plaintiff must oppose the motion by setting forth specific facts in

15

declaration(s) and/or by submitting other evidence regarding the exhaustion

16

of administrative remedies. See Fed. R. Civ. P. 43(c). Unsigned declarations

17

will be stricken, and declarations not signed under penalty of perjury have

18

no evidentiary value.

19

EASTERN DISTRICT OF CALIFORNIA LOCAL RULE

20

REQUIREMENTS

21

In accordance with Local Rule 260(a), Defendants have each filed a

22

Statement of Undisputed Facts that contains discrete, specific material facts

23

to support their entitlement to summary judgment.

24

Statement, Local Rule 260(b) requires you to “reproduce the itemized facts

25

in the Statement of Undisputed Facts and admit those facts that are

26

undisputed and deny those that are disputed, including with each denial a

27

citation to the particular portions of any pleading, affidavit, deposition,

28

interrogatory answer, admission, or other document relied upon in support

In response to this

1

of that denial.” You may also “file a concise Statement of Disputed Facts,

2

and the source thereof in the record, of all additional material facts as to

3

which

4

adjudication.” Id. You are responsible for filing all evidentiary documents

5

cited in the opposing papers. Id. If additional discovery is needed to oppose

6

summary

7

specification of the particular facts on which discovery is to be had or the

8

issues on which discovery is necessary.” See also Fed. R. Civ. P. 56(d).

9

III.

there is a genuine issue precluding

judgment,

summary

judgment

or

Local Rule 260(b) requires you to “provide a

CONCLUSION AND ORDER

10

Pursuant to the Ninth Circuit’s decision in Woods, Plaintiff has now been provided with

11

“fair notice” of the requirements for opposing Defendants’ motion for summary judgment. In

12

light of this notice the court finds good cause at this juncture to open a thirty-day time period for

13

Plaintiff to file further opposition to Defendants’ motions for summary judgment, if he so wishes.

14

The court will not consider multiple oppositions to one motion, however, and Plaintiff has two

15

options upon receipt of this order.

16

consolidated opposition or (2) withdraw the consolidated opposition and file separate amended

17

oppositions to the two pending motions for summary judgment. The amended oppositions, if

18

any, must be complete in themselves and must not refer back to any of the opposition documents

19

Plaintiff filed on December 4, 2020. L.R. 220.5

Plaintiff may either (1) stand on his previously- filed

20

Accordingly, it is HEREBY ORDERED that:

21

1.

Plaintiff may, within thirty (30) days from the date of service of this order,

22

(1) withdraw his consolidated opposition filed on December 4, 2020, and (2) file

23

two amended oppositions, one for defendant Bairamian’s motion for summar y

24

judgment and one for defendant Betz’s motion for summary judgment;

25

Local Rule 220 provides, in part: “Unless prior approval to the contrary is obtained from
the Court, every pleading to which an amendment or supplement is permitted as a matter of right or has
been allowed by court order shall be retyped and filed so that it is complete in itself without reference to
the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule
has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the
changed pleading.”
5

26
27
28

1

2.

If Plaintiff does not file amended oppositions in response to this order within thirty

2

days, Plaintiff’s existing consolidated opposition, filed on December 4, 2020, will

3

be considered in resolving the pending motions for summary judgment; and

4

3.

If Plaintiff elects to file amended oppositions, Defendants may file replies to each
of the amended oppositions pursuant to Local Rule 230(l).

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated:

January 11, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE