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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRED FULFORD, Plaintiff, 8 v. 9 10 DON M. GRIFFITH, Defendant. United States District Court Northern District of California 11 Case No. 16-cv-00770-MEJ ORDER DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' AMENDED SUMMARY JUDGMENT MOTION Re: Dkt. No. 46 12 Plaintiff, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983. 13 14 Now pending before the Court is Plaintiff’s motion requesting that the Court issue an order stating 15 that Plaintiff’s opposition to the amended summary judgment motion is correctly docketed at 16 Docket Nos. 35, 36, 37, 38, and 45; stating that Defendant’s reply in support of his amended 17 summary judgment motion was due June 5, 2017; stating that Defendant failed to comply with the 18 Rand requirement; denying Defendant’s amended summary judgment motion; and scheduling a 19 settlement conference. Dkt No. 46. Plaintiff’s motion is GRANTED IN PART and DENIED IN 20 PART. 21 The motion is GRANTED in that the Court will consider Plaintiff’s pleadings docketed at 22 Docket Nos. 35, 36, 37, 38, and 45 as the opposition to the amended summary judgment motion; 23 and in that the Court has already referred the case to settlement proceedings, Dkt. No. 44. 24 The motion is DENIED in that the Court declines to deny Defendant’s summary judgment 25 motion. Plaintiff is incorrect that Defendant’s amended summary judgment motion failed to 26 comply with the Ninth Circuit’s Rand requirement. The amended summary judgment motion 27 provided Plaintiff with the required Rand notice, Dkt. No. 34 at 4, the text of which can be found 28 1 at Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998).1 In addition, Defendant’s confusion about 2 whether a reply brief was warranted was understandable, and Defendant properly sought guidance 3 from the Court regarding when to file the reply brief. The Court declined to set a deadline for the 4 reply brief and instead referred the case to settlement proceedings. Because this case is stayed 5 pending settlement proceedings, there is also no need to currently address Defendant’s amended 6 summary judgment motion. 7 This order terminates Dkt. No. 46. 8 IT IS SO ORDERED. 9 10 Dated: ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 11 United States District Court Northern District of California July 11, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 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. 2

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