Perez v. Nguyen et al

Filing 83

ORDER PROVIDING PLAINTIFF NOTICE AND WARNING; SCHEDULING SUPPLEMENTAL BRIEFING. Signed by Judge Jeffrey S. White on 7/11/12. (jjoS, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN TIMOTHY PEREZ,
Plaintiff,

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For the Northern District of California

United States District Court

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vs.

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DR. NGUYEN, DR. BOWMAN, P.
LADUKE, S.S.A. JONES, and B.
14 FRINTZ,
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Defendants.

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No. C 09-4939 JSW (PR)
ORDER PROVIDING
PLAINTIFF NOTICE AND
WARNING; SCHEDULING
SUPPLEMENTAL
BRIEFING

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Plaintiff, a California prisoner, filed this pro se civil rights action under 42

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U.S.C. § 1983. Defendants have filed a second motion for summary judgment, which

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Plaintiff has opposed. Pursuant to Woods v. Carey, No. 09-15548, slip op. 7871, 7884-

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85 (9th Cir. July 6, 2012), the following notices and warnings are provided to Plaintiff

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again.

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Plaintiff must read the following “NOTICE -- WARNING (SUMMARY

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JUDGMENT),” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952,

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953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12

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(9th Cir. 1988). To the extent defendants argue that Plaintiff failed to exhaust his

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administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should also read

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the “NOTICE -- WARNING (EXHAUSTION)” which is provided to him pursuant to

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Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003):

NOTICE -- WARNING (SUMMARY JUDGMENT)

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If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of

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Civil Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary

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judgment. Generally, summary judgment must be granted when there is no genuine

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issue of material fact--that is, if there is no real dispute about any fact that would affect

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the result of your case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case. When a party you are suing
makes a motion for summary judgment that is properly supported by declarations (or

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For the Northern District of California

United States District Court

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other sworn testimony), you cannot simply rely on what your complaint says. Instead,

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you must set out specific facts in declarations, depositions, answers to interrogatories, or

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authenticated documents, as provided in Rule 56(e), that contradict the facts shown in

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the defendant's declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition, summary

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judgment, if appropriate, may be entered against you. If summary judgment is granted,

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your case will be dismissed and there will be no trial.
NOTICE -- WARNING (EXHAUSTION)

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If defendants file an unenumerated motion to dismiss for failure to exhaust, they

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are seeking to have your case dismissed. If the motion is granted it will end your case.

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You have the right to present any evidence you may have which tends to show

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that you did exhaust your administrative remedies. Such evidence may be in the form

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of declarations (statements signed under penalty of perjury) or authenticated documents,

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that is, documents accompanied by a declaration showing where they came from and

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why they are authentic, or other sworn papers, such as answers to interrogatories or

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depositions.

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If defendants file a motion to dismiss and it is granted, your case will be
dismissed and there will be no trial.
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Plaintiff may file a supplemental opposition to Defendants’ motion for summary

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judgment on or before August 1, 2012. Defendants shall file a supplemental reply brief

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within 7 days of the date any supplemental opposition is filed. If Plaintiff does not

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supplement his opposition, Defendants’ motion will be decided on the papers that have

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already been filed.

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IT IS SO ORDERED.
DATED: July 11, 2012

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JEFFREY S. WHITE
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN T. PEREZ,

Case Number: CV09-04939 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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D. NGUYEN et al,
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Defendant.
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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on July 11, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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John Timothy Perez
E56699
P.O. Box 7000
Crescent City, CA 95531

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Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk