Yelenich et al v. Cate et al

Filing 56

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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 8 SCOTT LOUIS YELENICH, Plaintiff, 9 11 For the Northern District of California United States District Court 10 No. C 09-5073 PJH (PR) vs. MATHEW CATE, Director, CDCR, et al., Defendants. 12 ORDER GIVING ADDITIONAL NOTICE; DEADLINE FOR PARTIES TO FILE SUPPLEMENTAL MATERIALS / 13 14 In Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele 15 v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988), the Ninth Circuit held that pro se 16 prisoner litigants must be given a warning about the requirements of Rule 56 of the Federal 17 Rules of Civil Procedure pertaining to summary judgment and the consequences of such a 18 motion. In Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003), the court required 19 somewhat similar warning about unenumerated motions to dismiss for failure to exhaust. 20 This court routinely provides these warnings in its orders of service for prisoner pro se civil 21 rights complaints. 22 The Ninth Circuit now has held that the notices must be provided at the time the 23 motions are filed, and that notices given in advance of such motions are not sufficient. 24 Woods v. Carey, No 09-15548, slip op. 7871, 7874 (July 6, 2012). The new rule applies to 25 all pending cases. Id. at 7885. There is a motion for summary judgment in this case that 26 would be ready for decision, were it not that the Rand notice was insufficient under Woods. 27 Plaintiff shall take notice of the attached warning. If after considering it he wishes to 28 file additional argument or supporting materials to his opposition, he shall do so within 1 fifteen days. If plaintiff makes a supplemental filing, defendants may file a reply within 2 seven days. In view of the age of this case, no extensions of time will be granted except in 3 the most compelling circumstances. 4 IT IS SO ORDERED. 5 Dated: July 11, 2012. PHYLLIS J. HAMILTON United States District Judge 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\PJH\CR.09\YELENICH5073.woods notice.wpd 2 1 2 NOTICE 3 If defendants move for summary judgment, they are seeking to have your case 4 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 5 Procedure will, if granted, end your case. judgment. Generally, summary judgment must be granted when there is no genuine issue 8 of material fact--that is, if there is no real dispute about any fact that would affect the result 9 of your case, the party who asked for summary judgment is entitled to judgment as a matter 10 of law, which will end your case. When a party you are suing makes a motion for summary 11 For the Northern District of California Rule 56 tells you what you must do in order to oppose a motion for summary 7 United States District Court 6 judgment that is properly supported by declarations (or other sworn testimony), you cannot 12 simply rely on what your complaint says. Instead, you must set out specific facts in 13 declarations, depositions, answers to interrogatories, or authenticated documents, as 14 provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and 15 documents and show that there is a genuine issue of material fact for trial. If you do not 16 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 17 against you. If summary judgment is granted, your case will be dismissed and there will be 18 no trial. 19 20 21 22 23 24 25 26 27 28 3

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