Yelenich et al v. Cate et al
Filing
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ORDER GIVING ADDITIONAL NOTICE; DEADLINE FOR PARTIES TO FILE SUPPLEMENTAL MATERIALS. Signed by Judge Phyllis J. Hamilton on 7/11/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 7/11/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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SCOTT LOUIS YELENICH,
Plaintiff,
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For the Northern District of California
United States District Court
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No. C 09-5073 PJH (PR)
vs.
MATHEW CATE, Director, CDCR, et al.,
Defendants.
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ORDER GIVING ADDITIONAL
NOTICE; DEADLINE FOR
PARTIES TO FILE
SUPPLEMENTAL
MATERIALS
/
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In Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele
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v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988), the Ninth Circuit held that pro se
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prisoner litigants must be given a warning about the requirements of Rule 56 of the Federal
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Rules of Civil Procedure pertaining to summary judgment and the consequences of such a
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motion. In Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003), the court required
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somewhat similar warning about unenumerated motions to dismiss for failure to exhaust.
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This court routinely provides these warnings in its orders of service for prisoner pro se civil
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rights complaints.
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The Ninth Circuit now has held that the notices must be provided at the time the
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motions are filed, and that notices given in advance of such motions are not sufficient.
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Woods v. Carey, No 09-15548, slip op. 7871, 7874 (July 6, 2012). The new rule applies to
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all pending cases. Id. at 7885. There is a motion for summary judgment in this case that
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would be ready for decision, were it not that the Rand notice was insufficient under Woods.
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Plaintiff shall take notice of the attached warning. If after considering it he wishes to
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file additional argument or supporting materials to his opposition, he shall do so within
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fifteen days. If plaintiff makes a supplemental filing, defendants may file a reply within
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seven days. In view of the age of this case, no extensions of time will be granted except in
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the most compelling circumstances.
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IT IS SO ORDERED.
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Dated: July 11, 2012.
PHYLLIS J. HAMILTON
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\PJH\CR.09\YELENICH5073.woods notice.wpd
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NOTICE
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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.
judgment. Generally, summary judgment must be granted when there is no genuine issue
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of material fact--that is, if there is no real dispute about any fact that would affect the result
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of your case, the party who asked for summary judgment is entitled to judgment as a matter
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of law, which will end your case. When a party you are suing makes a motion for summary
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For the Northern District of California
Rule 56 tells you what you must do in order to oppose a motion for summary
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United States District Court
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judgment that is properly supported by declarations (or other sworn testimony), you cannot
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simply rely on what your complaint says. Instead, you must set out specific facts in
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declarations, depositions, answers to interrogatories, or authenticated documents, as
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provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and
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documents and show that there is a genuine issue of material fact for trial. If you do not
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submit your own evidence in opposition, summary judgment, if appropriate, may be entered
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against you. If summary judgment is granted, your case will be dismissed and there will be
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no trial.
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