Fulford v. Griffith et al

Filing 48

ORDER by JMagistrate Judge Maria-Elena James denying #46 Motion to Dismiss; denying #46 Motion for Summary Judgment. (Attachments: #1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 7/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRED FULFORD,
Plaintiff,

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v.

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DON M. GRIFFITH,
Defendant.

United States District Court
Northern District of California

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Case No. 16-cv-00770-MEJ
ORDER DENYING PLAINTIFF'S
MOTION TO DISMISS DEFENDANTS'
AMENDED SUMMARY JUDGMENT
MOTION
Re: Dkt. No. 46

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Plaintiff, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983.

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Now pending before the Court is Plaintiff’s motion requesting that the Court issue an order stating

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that Plaintiff’s opposition to the amended summary judgment motion is correctly docketed at

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Docket Nos. 35, 36, 37, 38, and 45; stating that Defendant’s reply in support of his amended

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summary judgment motion was due June 5, 2017; stating that Defendant failed to comply with the

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Rand requirement; denying Defendant’s amended summary judgment motion; and scheduling a

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settlement conference. Dkt No. 46. Plaintiff’s motion is GRANTED IN PART and DENIED IN

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PART.

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The motion is GRANTED in that the Court will consider Plaintiff’s pleadings docketed at

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Docket Nos. 35, 36, 37, 38, and 45 as the opposition to the amended summary judgment motion;

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and in that the Court has already referred the case to settlement proceedings, Dkt. No. 44.

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The motion is DENIED in that the Court declines to deny Defendant’s summary judgment

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motion. Plaintiff is incorrect that Defendant’s amended summary judgment motion failed to

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comply with the Ninth Circuit’s Rand requirement. The amended summary judgment motion

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provided Plaintiff with the required Rand notice, Dkt. No. 34 at 4, the text of which can be found

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at Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998).1 In addition, Defendant’s confusion about

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whether a reply brief was warranted was understandable, and Defendant properly sought guidance

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from the Court regarding when to file the reply brief. The Court declined to set a deadline for the

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reply brief and instead referred the case to settlement proceedings. Because this case is stayed

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pending settlement proceedings, there is also no need to currently address Defendant’s amended

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summary judgment motion.

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This order terminates Dkt. No. 46.

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IT IS SO ORDERED.

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Dated:

______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

July 11, 2017

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Plaintiff argues that the Rand notice is approximately one-and-a-half pages and provides a copy
of a Rand notice provided in an unrelated case. Dkt. No. 45. The Rand notice that Plaintiff
provides is from a case in the Eastern District of California and appears to contain additional
language required by the Eastern District of California, which is not required in the Northern
District of California.
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