Evans v. Sisto et al

Filing 143

ORDER signed by Judge William B. Shubb on 7/30/2012: IT IS ORDERED that plaintiff shall be prepared to inform the court on the first day of trial (August 7, 2012) whether he wants to proceed with trial and waives the defect in the timing of the Ra nd and Wyatt notices or wants to continue the trial to reopen the motions or have additional time to decide whether to reopen the motions. If plaintiff elects to waive the defects in the timing of the notices and proceed to trial, the jury will be brought in on the second day of trial. (See document for further details.)(Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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JAMES EVANS, JR.,
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Plaintiff,

NO. CIV. 2:09-292 WBS JFM

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v.
ORDER

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D.K. SISTO, et al.,
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Defendants.
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/

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----oo0oo---18
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On July 6, 2012, the Ninth Circuit issued a decision

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addressing the timing of notices to pro se prisoners pursuant to

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

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v. Terhune, 315 F.3d 1108 (9th Cir. 2003).

Woods v. Carey, ---

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F.3d ----, 2012 WL 2626912 (9th Cir. 2012).

The Ninth Circuit

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held that Rand and Wyatt notices, which instruct a pro se

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prisoner about how to properly respond to a motion to dismiss or

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motion for summary judgment, “must be provided to pro se prisoner

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plaintiffs at the time the defendants’ motions are filed.”

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v. Carey, 2012 WL 2626912, at *1.
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Woods

In Woods v. Carey, the Ninth

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Circuit rejected this district’s practice of providing Rand and

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Wyatt notices at the time the court issues the order directing

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service on defendants.

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provide adequate Rand notice is a ground for reversal unless it

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is clear from the record that there are no facts that would

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permit the inmate to prevail.”

The court held that “[t]he failure to

Id. at *6.

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While plaintiff has been appointed pro bono counsel for

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his upcoming trial, he represented himself at the time defendants

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filed a motion to dismiss, (Docket No. 32), and a motion for

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summary judgment, (Docket No. 82).

This court provided the Rand

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and Wyatt notices at the time it ordered service on defendants,

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(Docket No. 25), but did not provide the requisite notice at the

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time defendants filed their motions,1 and the court ruled in

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favor of defendants on some of plaintiff’s claims, (Docket Nos.

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51, 57, 99, 104.)
To comply with Woods v. Carey, the court wishes to give

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plaintiff the opportunity to reopen either or both motions and

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present evidence, declarations, or affidavits that were not

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presented in opposition to the motions.

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requests, the court will set aside its orders and the magistrate

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judge’s findings and recommendations on the motion to dismiss

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and/or motion for summary judgment and allow plaintiff whatever

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time is required to file new oppositions.

If plaintiff so

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In defendants’ motion for summary judgment, defendants
directed plaintiff to the court’s previously issued Rand and
Wyatt notices. (See Docket No. 82 at 2:5-6.) Given the Ninth
Circuit’s concern that prisoners will often be unable to access
or will have misplaced Rand and Wyatt notices given well-before
motions are filed, see Woods, 2012 WL 2626912, at *5, it is
unlikely that defendants’ reference to the court’s premature
notices would comply with Woods v. Carey.
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The following two paragraphs are inserted herein to

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help plaintiff decide whether he wants to reopen the motions and,

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in the event he reopens the motions, to provide plaintiff with

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timely notice under Rand and Wyatt:

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Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14

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(9th Cir. 2003), plaintiff is advised of the following

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requirements for opposing a motion to dismiss for failure to

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exhaust administrative remedies made by defendant pursuant to

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non-enumerated Rule 12(b) of the Federal Rules of Civil

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Procedure.

Such a motion is a request for dismissal of

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unexhausted claims without prejudice.

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affidavits or declarations under penalty of perjury and

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admissible documentation to support the motion to dismiss.

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oppose the motion, plaintiff may likewise file declarations under

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penalty of perjury and admissible documentation.

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rely upon statements made under the penalty of perjury in the

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complaint if the complaint shows that plaintiff has personal

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knowledge of the matters stated and plaintiff calls to the

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court’s attention those parts of the complaint upon which

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plaintiff relies.

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affidavits or declarations by other persons who have personal

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knowledge of relevant matters.

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written records, but plaintiff must prove that the records are

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what plaintiff claims they are.

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defendant’s evidence with admissible evidence, the court may rely

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on the defendant’s evidence.

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matters outside the pleadings, the court may look beyond the

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pleadings and decide disputed issues of fact.

The defendant may submit

To

Plaintiff may

Plaintiff may serve and file one or more

Plaintiff may also rely upon

If plaintiff fails to contradict

In the event both sides submit

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If plaintiff does

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not serve and file a written opposition to the motion, the

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court may consider the failure to act as a waiver of opposition

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to the defendant’s motion.

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whether opposed or unopposed, is granted, plaintiff’s unexhausted

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claims will be dismissed without prejudice.

If the defendant’s motion to dismiss,

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Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th

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Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff

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is advised of the following requirements for opposing a motion

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for summary judgment made by defendants pursuant to Rule 56 of

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the Federal Rules of Civil Procedure.

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for an order for judgment in favor of defendants without trial.

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A defendant’s motion for summary judgment will set forth the

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facts that the defendants contend are not reasonably subject to

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dispute and that entitle the defendants to judgment.

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motion for summary judgment, plaintiff must show proof of his or

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her claims.

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following ways.

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the penalty of perjury in the complaint if the complaint shows

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that plaintiff has personal knowledge of the matters stated and

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plaintiff calls to the court’s attention those parts of the

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complaint upon which plaintiff relies.

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file one or more affidavits or declarations setting forth the

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facts that plaintiff believes prove plaintiff’s claims; the

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person who signs an affidavit or declaration must have personal

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knowledge of the facts stated. Plaintiff may rely upon written

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records, but plaintiff must prove that the records are what

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plaintiff claims they are.

Such a motion is a request

To oppose a

Plaintiff may do this in one or more of the
Plaintiff may rely upon statements made under

Plaintiff may serve and

Plaintiff may rely upon all or any
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part of the transcript of one or more depositions, answers to

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interrogatories, or admissions obtained in this proceeding.

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plaintiff fails to contradict the defendants’ evidence with

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counteraffidavits or other admissible evidence, the defendants’

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evidence may be taken as the truth and the defendants’ motion for

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summary judgment granted.

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facts are not available to plaintiff when required to oppose a

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motion for summary judgment, the court will consider a request to

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postpone considering the defendants’ motion.

If

If there is some good reason why such

If plaintiff does

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not serve and file a written opposition to the motion or a

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request to postpone consideration of the motion, the court may

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consider the failure to act as a waiver of opposition to

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the defendants’ motion.

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judgment, whether opposed or unopposed, is granted on any of

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plaintiff’s claims, judgment will be entered for the defendants

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without a trial on those claims.

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If the defendants’ motion for summary

IT IS THEREFORE ORDERED that plaintiff shall be

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prepared to inform the court on the first day of trial (August 7,

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2012) whether he wants to proceed with trial and waives the

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defect in the timing of the Rand and Wyatt notices or wants to

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continue the trial to reopen the motions or have additional time

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to decide whether to reopen the motions. If plaintiff elects to

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waive the defects in the timing of the notices and proceed to

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trial, the jury will be brought in on the second day of trial.

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DATED:

July 30, 2012

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