Erausquin v. County of Contra Costa et al

Filing 19

ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE by Judge William Alsup denying 11 Motion for Summary Judgment (dt, COURT STAFF) (Filed on 8/8/2012) (Additional attachment(s) added on 8/8/2012: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 12-0169 WHA (PR)
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT WITHOUT
PREJUDICE

Plaintiff,
For the Northern District of California

United States District Court

GONZALO ERAUSQUIN,
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v.
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COUNTY OF CONTRA COSTA;
CONTRA COSTA SHERIFF
DEPARTMENT; OFFICER
MICHAEL RECTOR; OFFICER
CHRISTOPHER HAMBLIN;
SHERIFF DAVID LIVINGSTON;
DOES 1-30,

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(Docket No. 11)

Defendants.
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Plaintiff, an inmate in the Contra Costa County Jail, filed this pro se civil rights action

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pursuant to 42 U.S.C. 1983. Defendants removed the case to federal court and have filed a

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motion for summary judgment. A pro se prisoner is entitled to “fair notice” of the requirements

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of Rule 56 of the Federal Rules of Civil Procedure pertaining to summary judgment and the

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consequences of such a motion. See Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998)

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(en banc) (reaffirming holding of Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988)).

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Such a notice was given to plaintiff on April 17, 2012, when a scheduling order was issued.

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That is no longer sufficient, however. Notice must be given at the time the motion for summary

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judgment is filed, rather than when the court orders service of process or otherwise before the

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motion is filed. Woods v. Carey, No. 09-15548, slip op. 7871, 7874 (9th Cir. July 6, 2012).

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Defendants did not give plaintiff the notice required by Rand when they filed their motion for

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summary judgment. Consequently, under Woods, the motion for summary judgment (docket

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number 11) is DENIED. Defendants may re-file their motion within 28 days of the date this

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order is filed provided that it is accompanied by a proof of service showing that defendants

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served plaintiff with the Rand notice at the same time that they served him with their motion.

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IT IS SO ORDERED.
Dated: August

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, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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G:\PRO-SE\WHA\CR.12\ERAUSQUIN0169.WOODSMSJ.wpd

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