Harvey v. Scott et al

Filing 19

ORDER DENYING MOTION TO DISMISS; ORDER DIRECTING DEFENDANTS TO FILE A MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 2/26/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/26/2013)

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1 2 *E-Filed 2/26/13* 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 No. C 11-4332 RS (PR) JAMES EARL HARVEY, 13 ORDER DENYING MOTION TO DISMISS; Plaintiff, 14 v. 15 J. HINDT, et al., 16 17 18 ORDER DIRECTING DEFENDANTS TO FILE A MOTION FOR SUMMARY JUDGMENT Defendants. / Defendants’ motion to dismiss the action on grounds that plaintiff has failed to state 19 claims for relief (Docket No. 14) is DENIED. Plaintiff’s allegations, when liberally 20 construed, appear to state claims for relief. Defendants’ grounds for dismissal are more 21 properly raised in a motion for summary judgment. Accordingly, defendants shall file a 22 motion for summary judgment on or before June 1, 2013. Plaintiff shall file and serve on 23 defendants his opposition, if any, within 45 days after the motion for summary judgment has 24 been filed. If plaintiff files an opposition, defendants may, but are not required to, file a 25 reply, which shall be filed and served on plaintiff within 15 days after plaintiff’s opposition 26 is filed. Extensions of time must be filed no later than the deadline sought to be extended 27 and must be accompanied by a showing of good cause. 28 No. C 11-4332 RS (PR) ORDER DENYING DEFS.’ MOT. TO DISMISS 1 Defendants are reminded that a recent decision from the Ninth Circuit requires that 2 pro se prisoner-plaintiffs be given “notice of what is required of them in order to oppose” 3 summary judgment motions at the time of filing of the motions, rather than when the court 4 orders service of process or otherwise before the motions are filed. Woods v. Carey, 684 5 F.3d 934, 935 (9th Cir. 2012). Defendants shall provide the following notice to plaintiff 6 when they file and serve any motion for summary judgment: 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact — that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to 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 other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998). 18 The parties’ motion to stay discovery pending resolution of the motion to dismiss 19 (Docket No. 17) is DENIED as moot. The Clerk shall terminate Docket No. 14 and 17. 20 21 IT IS SO ORDERED. DATED: February 26, 2013 RICHARD SEEBORG United States District Judge 22 23 24 25 26 27 28 2 No. C 11-4332 RS (PR) ORDER DENYING DEFS.’ MOT. TO DISMISS

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