Nguyen v. Bartos, et al

Filing 61

ORDER signed by Magistrate Judge Kendall J. Newman on 7/18/12 ORDERING that the motion for summary judgment filed by defendants on September 23, 2011 48 is deemed re-noticed as of the filing date of this order, and shall be so designated on the doc ket by the Clerk of Court. Plaintiff is hereby informed of the requirements for opposing a motion for summary judgment (see order for further details). Within 21 days after the service date of this order, plaintiff may file an opposition to defendants motion for summary judgment. Within seven days after the date of service of the opposition, defendants may file a reply. The 59 findings and recommendations are VACATED.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRI D. NGUYEN,

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Plaintiff,

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vs.

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No. 2: 10-cv-1461 WBS KJN P

BARTOS, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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filed pursuant to 42 U.S.C. § 1983. On May 30, 2012, the undersigned recommended that

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defendants’ summary judgment motion be granted. However, pursuant to the Ninth Circuit’s

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recent decision in Woods v. Carey, __F.3d __, 2012 WL 2626912 (9th Cir., July 06, 2012 ), it is

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necessary to vacate the May 30, 2012 findings and recommendations, deem defendants’ summary

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judgment motion re-noticed as of the filing date of this order, and to provide contemporaneous

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notice to plaintiff of the requirements for opposing a motion for summary judgment.

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The Ninth Circuit requires that pro se prisoner plaintiffs be provided notice of the

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requirements for opposing a motion for summary judgment “at the time the defendants’ motions

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are filed.” Woods, 2012 WL 2626912 at *1, *5, citing Rand v. Rowland, 154 F.3d 952, (9th Cir.

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1998) (en banc); see also Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). The
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district court may provide such notice if defendants fail to do so. Woods, 2012 WL 2626912 at

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*5. When provided by defendant, the notification must be set forth in “a separate document,

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served with the moving papers, and state[] that the court has required that it be given.” Rand,

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154 F.3d at 960; Woods, 2012 WL 2626912 at *4. The Ninth Circuit held that these

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requirements apply to both “pending and future cases.” Woods at *6.

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In the present case, defendants filed a motion for summary judgment without

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apparently providing the requisite notice to plaintiff. (See Dkt. No. 48.) Plaintiff did not oppose

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defendants’ motion. In light of Woods, this court finds it necessary to deem defendants’ motion

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for summary judgment re-noticed as of the filing date of this order, and to contemporaneously

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notify plaintiff of the requirements for opposing the motion, as set forth below.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The motion for summary judgment filed by defendants on September 23, 2011

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(Dkt. No. 48) is deemed re-noticed as of the filing date of this order, and shall be so designated

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on the docket by the Clerk of Court.

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2. Plaintiff is hereby informed of the following requirements for opposing a
motion for summary judgment:
Pursuant to Woods v. Carey, __F.3d __, 2012 WL 2626912 (9th
Cir., July 06, 2012, Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th
Cir. 1988), the following requirements apply for opposing a motion
for summary judgment pursuant to Fed. R. Civ. P. 56. Such a
motion is a request for an order for judgment in favor of the
defendant without trial. A defendant’s motion for summary
judgment will set forth the facts that the defendant contends are not
reasonably subject to dispute and that entitle the defendant to
judgment.

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To oppose a motion for summary judgment, plaintiff must show
proof of his or her claims. Plaintiff may do this in one or more of
the following ways. Plaintiff may rely on plaintiff’s statements
made under penalty of perjury in the complaint if the complaint
shows that plaintiff has personal knowledge of the matters stated
and plaintiff specifies those parts of the complaint on which
plaintiff relies. Unsigned affidavits or declarations will be
stricken, and affidavits or declarations not signed under penalty of
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perjury have no evidentiary value. Plaintiff may serve and file one
or more affidavits or declarations setting forth the facts that
plaintiff believes prove plaintiff’s claims; the person who signs an
affidavit or declaration must have personal knowledge of the facts
stated. Plaintiff may rely on written records, but plaintiff must
prove that the records are what plaintiff asserts they are. Plaintiff
may rely on all or any part of the transcript of one or more
depositions, answers to interrogatories, or admissions obtained in
this proceeding.

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If plaintiff fails to contradict the defendant’s evidence with
counteraffidavits or other admissible evidence, the court may
accept defendant’s evidence as true and grant the motion. If there
is some good reason why such facts are not available to plaintiff
when required to oppose a motion for summary judgment, the
court will consider a request to postpone consideration of the
defendant’s motion. See Fed. R. Civ. P. 56(d).

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If plaintiff does not serve and file a written opposition to the
motion, or a request to postpone consideration of the motion, the
court may consider the failure to act as a waiver of opposition to
the defendant’s motion. See L.R. 230(l).

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If the court grants the motion for summary judgment, whether
opposed or unopposed, judgment will be entered for the defendant
without a trial and the case will be closed as to that defendant. In
the present case, summary judgment for defendant would end the
entire case.

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3. Within twenty-one days after the service date of this order, plaintiff may file an
opposition to defendants’ motion for summary judgment, L.R. 230(l).

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4. Within seven days after the date of service of the opposition, defendants may
file a reply.

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5. The May 30, 2012 findings and recommendations (Dkt. No. 59) are vacated.
DATED: July 18, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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ng1461.rand

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