Carr v. California Department of Corrections & Rehabilitation et al

Filing 165

ORDER signed by Judge Garland E. Burrell, Jr on 8/20/12 ORDERING this court finds that it is unnecessary to reopen briefing on the April 4, 2011 motion for summary judgment pursuant to Woods v. Carey. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR CARR,

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Plaintiff,

No. 2:09-cv-0826 GEB KJN P

vs.
H. HER, and A.V. Solorzano,
Defendant.

ORDER
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Plaintiff is a state prisoner proceeding without counsel. This matter is set for trial

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confirmation hearing on January 11, 2013, and for jury trial on February 26, 2013, before the

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undersigned. On March 21, 2012, defendants’ motion for summary judgment was denied in part

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and granted in part. (Dkt. No. 151.)

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Recently, the Ninth Circuit issued an order requiring that all prisoners proceeding

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pro se must be provided contemporaneous notice of certain requirements for opposing a motion

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for summary judgment. Woods v. Carey, __F.3d __, 2012 WL 2626912,*1, *5 (9th Cir. July 6,

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2012 ), citing Rand v. Rowland, 154 F.3d 952, (9th Cir. 1998) (en banc); see also Klingele v.

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Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). In Woods v. Carey, the Ninth Circuit rejected

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this district’s practice of providing Rand and Wyatt notices at the time the court issues the order

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directing service on defendants. The court held that “[t]he failure to provide adequate Rand
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notice is a ground for reversal unless it is clear from the record that there are no facts that would

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permit the inmate to prevail.” Woods v. Carey, at *6.

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In the instant action, the court provided the Rand and Wyatt notices at the time it

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ordered service on defendants (dkt. no. 9), but did not provide the requisite notice at the time

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defendants filed their motion,1 and the court ruled in favor of defendants on plaintiff’s Fourteenth

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Amendment claim. (Dkt. No. 149 at 16; 151.) The court also found that plaintiff’s cover-up

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claim was not ripe, and dismissed the claim as premature.

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“The failure to provide adequate Rand notice is a ground for reversal unless it is

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clear from the record that there are no facts that would permit the inmate to prevail.” Woods v.

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Carey, 2012 WL 2626912, at *6, citing Rand, 154 F.3d at 962 n.9.

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Here, plaintiff’s Fourteenth Amendment claim was denied as a matter of law.

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Graham v. Connor, 490 U.S. 395 n.10 (1989). Thus, it is clear from the record (dkt. no. 149 at

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16), that plaintiff could allege no facts that would allow plaintiff to prevail on the Fourteenth

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Amendment claim, because plaintiff’s excessive force claim is adequately protected under the

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Eighth Amendment. The court denied defendants’ motion for summary judgment on plaintiff’s

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Eighth Amendment claims.

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Similarly, the record makes clear that plaintiff could allege no additional facts to

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demonstrate the alleged cover-up claim was timely brought inasmuch as the claim hinges on the

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outcome of the instant action. (Dkt. No. 149 at 19-20.)

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Accordingly, this court finds that it is unnecessary to reopen briefing on the April

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4, 2011 motion for summary judgment pursuant to Woods v. Carey, 2012 WL 2626912, at *6.

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DATED: 8/20/12

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UNITED STATES DISTRICT JUDGE
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The notice provided in defendants’ notice of motion cited Rand and Klingele, and
directed plaintiff’s attention to the court’s April 23, 2009 order. (Dkt. No. 110.)
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