Essa v. Jason et al

Filing 42

ORDER by Judge Yvonne Gonzalez Rogers denying without prejudice 24 Motion for Summary Judgment; denying without prejudice 31 Motion to Appoint Counsel and Directing Defendants to Refile Motions. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 3/26/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT
6

NORTHERN DISTRICT OF CALIFORNIA

7

SAN FRANCISCO DIVISION

8
9
United States District Court
For the Northern District of California

10

ESMAEL KEDIR ESSA,
Plaintiff,

11
12

No. C 11-1907 YGR (PR)
ORDER DENYING WITHOUT
PREJUDICE ALL MOTIONS;

v.
ORDER DIRECTING DEFENDANTS
TO REFILE MOTIONS

DEPUTY SHERIFF JASON, and
13 DEPUTY NAJERA,
14
15

Defendants.
/

16
17
18
19
20
21
22
23
24
25
26
27

This is a federal civil rights action. Defendants move for summary judgment. A
recent decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be given “notice
of what is required of them in order to oppose” summary judgment motions at the time of
filing of the motions, rather than when the court orders service of process or otherwise before
the motions are filed. Woods v. Carey, 684 F.3d 934, 939–40 (9th Cir. 2012). Because
Woods was issued after defendants’ motion was filed, the Court hereby DENIES the motion
for summary judgment (Docket No. 24) without prejudice, with directions to refile such
motion on or before May 25, 2013. Defendants shall provide the following notice to
plaintiff for each motion for summary judgment filed:
The defendants have made a motion for summary judgment by which they seek
to have your case dismissed. A motion for summary judgment under Rule 56
of the Federal Rules of Civil Procedure will, if granted, end your case.

28
No. C 11-1907 YGR (PR)
ORDER DENYING ALL MOTIONS

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Rule 56 tells you what you must do in order to oppose a motion for summary
judgment. Generally, summary judgment must be granted when there is no
genuine issue of material fact — that is, if there is no real dispute about any
fact that would affect the result of your case, the party who asked for summary
judgment is entitled to judgment as a matter of law, which will end your case.
When a party you are suing makes a motion for summary judgment that is
properly supported by declarations (or other sworn testimony), you cannot
simply rely on what your complaint says. Instead, you must set out specific
facts in declarations, depositions, answers to interrogatories, or authenticated
documents, as provided in Rule 56(e), that contradict the facts shown in the
defendants’ declarations and documents and show that there is a genuine issue
of material fact for trial. If you do not submit your own evidence in opposition,
summary judgment, if appropriate, may be entered against you. If summary
judgment is granted, your case will be dismissed and there will be no trial.
Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998). Plaintiff shall file his response to
defendants’ motion for summary judgment within 30 days after the motion has been filed.
Defendants are not required to file a reply, but any reply must be filed within 15 after
plaintiff’s opposition is filed.
Plaintiff’s motion for the appointment of counsel (Docket No. 31) is also DENIED
without prejudice. The decision to request counsel to represent an indigent litigant under
§ 1915 is within “the sound discretion of the trial court and is granted only in exceptional
circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of
“exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s success
on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro se in light
of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of
America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery, nor the fact
that the pro se litigant would be better served with the assistance of counsel, necessarily
qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
1997). Plaintiff has not shown that exceptional circumstances exist in this case. The Clerk
shall terminate Docket Nos. 24 and 31.
IT IS SO ORDERED.
DATED: March 26, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

27
28
2

No. C 11-1907 YGR (PR)
ORDER DENYING ALL MOTIONS