Robertson v. Struffert

Filing 38

ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE; SETTING NEW MOTION SCHEDULE. Motion due by 8/12/2013. Responses due by 9/15/2013. Replies due by 9/29/2013.. Signed by Judge Jeffrey S. White on 7/25/13. (jjoS, COURT STAFF) (Filed on 7/25/2013) Modified on 7/25/2013 (jjoS, 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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WAYNE JEROME ROBERTSON,
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Plaintiff,
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v.
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SGT. W. STRUFFERT, et al.,
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Defendants.
__________________________________ )

No. C 12-4698 JSW (PR)
ORDER DENYING MOTION
FOR SUMMARY JUDGMENT
WITHOUT PREJUDICE;
SETTING NEW MOTION
SCHEDULE
(Docket No. 21)

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Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint

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under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison. On October 25,

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2012, defendants were ordered served and dispositive motions were scheduled.

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Defendants filed a motion for summary judgment on March 12, 2013, but Plaintiff did

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not receive it because Defendants served the motion and exhibits on him at the wrong

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address. They notified the Court that they re-served him at the correct address on May

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30, 2013. However, on neither occasion did they include Rand warning when they

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served him, despite having been ordered to do so in the Order of Service.1 See Rand v.

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Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). The Rand notice must be

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given at the time of filing of the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.

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The Order of Service also ordered Defendants to file an answer, but they did not do so
until they were ordered to do so again on June 14, 2013.

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2012); Labatad v. Corrrections Corp. of America, 714 F.3d 1155, 1159 (9th Cir. 2013)

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(internal quotation and citation omitted). “The Rand notice must issue so that the litigant

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will receive the motion and the notice reasonably contemporaneously.” Id. Defendants

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did not serve plaintiff the Rand notice until June 25, 2013. This does not satisfy the rule

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in Woods and Labatad. This is especially true here as Plaintiff had already filed his

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opposition when the notice was served, and therefore he did not have the benefit of a

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“reasonably contemporaneous[]” Rand notice when he prepared the opposition.

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Defendants were warned in the Order of Service that if they did not serve Plaintiff with

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the Rand notice at the same time that they served him with the summary motion, that the

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motion would be denied without prejudice. Accordingly, Defendants’ motion for

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summary judgment is DENIED without prejudice to refiling in accordance with the

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following:

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1. No later than August 12, 2013, Defendants shall file a new motion for

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summary judgment or other dispositive motion. If Defendants are of the opinion that this

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case cannot be resolved by summary judgment, they shall so inform the court prior to the

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date the summary judgment motion is due. All papers filed with the court shall be

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promptly served on the Plaintiff. Along with their motion, defendants shall file proof

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that they served plaintiff the applicable Rand notice at the same time they served him

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with their motion. Failure to do so will result in the summary dismissal of their motion

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without prejudice.

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2. If Plaintiff wishes to file an opposition to Defendants’ motion for summary

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judgment, he must do so on or before September 15, 2013. Alternatively, he may by

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that date indicate that he wishes to oppose the summary judgment with the opposition he

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filed on June 24, 2013 (dkt. 36), and the Court will deem that as the opposition to

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Defendants’ motion for summary judgment. .

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Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

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provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en

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

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3. Defendants shall file a reply brief no later than September 29, 2013.

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4. The motion shall be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion unless the court so orders at a later date.

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This order terminates docket number 21.

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IT IS SO ORDERED.

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DATED: July 25, 2013
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JEFFREY S. WHITE
United States District Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)
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 Civil

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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 judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material

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fact--that is, if there is no real dispute about any fact that would affect the result of your case,

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the party who asked for summary judgment is entitled to judgment as a matter of law, which

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will end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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your complaint says. Instead, you must set out specific facts in declarations, depositions,

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answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that

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contradict the facts shown in the defendant's declarations and documents and show that there is

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a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

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summary 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.

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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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WAYNE J ROBERTSON,

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Case Number: CV12-04698 JSW

Plaintiff,

CERTIFICATE OF SERVICE

v.
W STRUFFERT et al,
Defendant.

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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 25, 2013, 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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Wayne J. Robertson #C-24851
S.V.S.P.
P.O. Box 1050
Soledad, CA 93960
Dated: July 25, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk