Ramirez v. Swingle et al

Filing 63

ORDER signed by Judge Lawrence K. Karlton on 9/28/12 REMANDING case back to the Magistrate Judge for further proceedings not inconsistent with this order. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW RAMIREZ,

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Plaintiff,

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No. 2:11-cv-0045-LKK-KJN-P

vs.
D. SWINGLE, et al.,
Defendants.

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

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant

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to 28 U.S.C. § 636(b)(1)(B) and E.D. Cal. R. (“Local Rule”) 302(17) & 302(21).

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On October 5, 2011 and January 20, 2012, plaintiff filed motions for injunctive relief

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(Dkt. Nos. 28 & 35). On February 24, 2012, defendants filed their opposition (Dkt. No. 38). On

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June 22, 2012, the Magistrate Judge ordered the defendants to file further briefing on the

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motions for injunctive relief (Dkt. No. 50). On July 20, 2012, defendants filed a summary

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judgment motion (Dkt. No. 53). Magistrate Judge Newman states that defendants’ summary

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judgment motion addressed “the issues requiring further briefing” (Dkt. No. 55).

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However, on July 26, 2012, before plaintiff had an opportunity to submit his response to
the defendants’ summary judgment-supplemental briefing, the Magistrate Judge filed Findings
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and Recommendations denying plaintiff’s motions for injunctive relief (Id.). No party filed

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objections.

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This court believes that plaintiff should have been given the opportunity to respond to

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defendant’s requested supplemental briefing, before the Findings and Recommendations were

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issued. Since defendants’ supplemental briefing was in the form of a motion for summary

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judgment, plaintiff is entitled to include his own supplemental response in his opposition to the

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summary judgment motion.

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Accordingly, IT IS HEREBY ORDERED that this matter is REMANDED to the
Magistrate Judge for further proceedings not inconsistent with this order.

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IT IS SO ORDERED.

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DATED: September 28, 2012.

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