Baker et al v. Cameron et al

Filing 63

ORDER signed by Magistrate Judge Kendall J. Newman on 10/9/2012 ORDERING # 60 that the F & R's are VACATED; Defendants' # 52 Motion for Summary Judgment is DENIED without prejudice and within 30 days from the date of this order, defendant s shall file and re-serve the motion for summary judgment, accompanied by the attached notice to plaintiff under Rand; Pursuant to Local Rule 230(l), plaintiff shall file his opposition within 21 days from the date defendants re-file their motion; any reply shall be filed 14 days thereafter. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY W. BAKER,

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Plaintiff,

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No. 2:10-cv-1811 KJM KJN P

vs.

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SOLANO COUNTY, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 30, 2012, the district court remanded this case for re-service of

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defendants’ motion for summary judgment, filed December 5, 2011, in light of Woods v. Carey,

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__F.3d __, 2012 WL 2626912,*1, *5 (9th Cir. July 6, 2012 ), citing Rand v. Rowland, 154 F.3d

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952, (9th Cir. 1998) (en banc); see also Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.

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1988).

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The Ninth Circuit requires that all prisoners proceeding pro se must be provided

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contemporaneous notice of certain requirements for opposing a motion for summary judgment.

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Woods, 2012 WL 2626912, at *5. The district court may provide such notice if defendants fail

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to do so. Id. When provided by defendant, the notification must be set forth in “a separate

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

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Rand, 154 F.3d at 960; Woods, 2012 WL 2626912 at *4. These requirements apply to both

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“pending and future cases.” Woods at *6.

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Therefore, the July 11, 2012 findings and recommendations are vacated, and

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defendants’ motion for summary judgment is denied without prejudice to its re-filing, so long as

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the renewed motion is accompanied by the notice required by Woods, as set forth below.

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Once the motion is re-filed, the parties are cautioned that this court is not inclined
to entertain requests for extensions of time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The July 11, 2012 findings and recommendations (dkt. no. 60) are vacated;

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2. Defendants’ December 5, 2011 motion for summary judgment (dkt. no. 52) is

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denied without prejudice; and

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3. Within thirty days from the date of this order, defendants shall file and re-serve

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the motion for summary judgment, accompanied by the attached notice to plaintiff under Rand.

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Pursuant to Local Rule 230(l), plaintiff shall file his opposition within twenty-one days from the

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date defendants re-file their motion. Any reply shall be filed fourteen days thereafter.

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DATED: October 9, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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/bake1811.vac

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Rand Notice to Plaintiff
This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely

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and adequate notice of what is required” to oppose a motion for summary judgment. See Woods

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v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998).

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The court requires that you be provided with this notice regarding the requirements for opposing

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a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

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When a defendant moves for summary judgment, the defendant is requesting that the

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court grant judgment in defendant’s favor without a trial. If there is no real dispute about any

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fact that would affect the result of your case, the defendant who asked for summary judgment is

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entitled to judgment as a matter of law, which will end your case against that defendant. A

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motion for summary judgment will set forth the facts that the defendant asserts are not

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reasonably subject to dispute and that entitle the defendant to judgment.

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To oppose a motion for summary judgment, you must show proof of your claims. To do

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this, you may refer to specific statements made in your complaint if you signed your complaint

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under penalty of perjury and if your complaint shows that you have personal knowledge of the

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matters stated. You may also submit declarations setting forth the facts that you believe prove

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your claims, as long as the person who signs the declaration has personal knowledge of the facts

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stated. You may also submit all or part of deposition transcripts, answers to interrogatories,

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admissions, and other authenticated documents. For each of the facts listed in the defendant’s

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Statement of Undisputed Facts, you must admit the facts that are undisputed, and deny the facts

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that are disputed. If you deny a fact, you must cite to the proof that you rely on to support your

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denial. See L.R. 260(b). If you fail to contradict the defendant’s evidence with your own

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evidence, the court may accept the defendant’s evidence as the truth and grant the motion.

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The court will consider a request to postpone consideration of the defendant’s motion if

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you submit a declaration showing that for a specific reason you cannot present such facts in your

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opposition. If you do not respond to the motion, the court may consider your failure to act as a

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waiver of your opposition. See L.R. 230(l).
If the court grants the defendant’s motion, whether opposed or unopposed, judgment will
be entered for that defendant without a trial and the case will be closed as to that defendant.