Burke v. Caldwell et al

Filing 34

ORDER PROVIDING RAND SUMMARY JUDGMENT NOTICE AND SETTING NEW BRIEFING SCHEDULE. Signed by Judge Yvonne Gonzalez Rogers on 7/20/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/20/2012)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

PATRICK BURKE,

4

No. C 11-02639 YGR (PR)

Plaintiff,

ORDER PROVIDING RAND SUMMARY
JUDGMENT NOTICE AND SETTING
NEW BRIEFING SCHEDULE

5
6
7

vs.
JOSE CALDWELL,
Defendant.

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

Plaintiff Patrick Burke, a former state prisoner, filed the above-titled pro se civil rights action
pursuant to 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment.
In its Order of Service, the Court, in accordance with the holding of Rand v. Rowland, 154
F.3d 952, 962-63 (9th Cir. 1998), explained to Plaintiff what he must do in order to oppose a motion
for summary judgment. A recent decision from the Ninth Circuit, however, 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 district court orders
service of process or otherwise before the motions are filed. Woods v. Carey, No. 09-15548, slip op.
7871, 7874 (9th Cir. July 6, 2012). Accordingly, the Court now provides the following notice to
Plaintiff for his information in connection with Defendants' pending motion for summary judgment:
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.
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 declarations1 (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

27
28

1

A "declaration" is a written statement made "under penalty of perjury" and signed by the
person making the statement known as the "declarant," who could either be you or your supporting
witness.

1
2
3
4
5

Rule 56(e), that contradict the facts shown in the defendant's 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 [in favor of the
defendants], your case will be dismissed and there will be no trial.
Rand, 154 F.3d at 962-63 (footnote added).
Plaintiff's opposition to Defendants' motion for summary judgment was due June 22, 2012.
In order to allow Plaintiff time to prepare his opposition to the pending motion for summary

7

judgment taking into account this Rand summary judgment notice, the Court now sets the following

8

new briefing schedule on Defendants' motion for summary judgment: Plaintiff must file and serve

9

his opposition to the motion, or a supplemental opposition if he already has mailed an opposition to

10
United States District Court
For the Northern District of California

6

Defendants and the Court, no later than August 10, 2012. Defendants shall file and serve their reply

11

no later than August 24, 2012. No further extensions of time will be granted in this case absent

12

extraordinary circumstances.

13
14

IT IS SO ORDERED.
DATED:

July 20, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

G:\PRO-SE\YGR\CR.11\Burke2639.RandNotice&EOToppn.wpd

2