Rice v. Curry

Filing 30

ORDER re 20 MOTION for Summary Judgment DEFENDANTS' NOTICE OF MOTIONS AND MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES filed by B. Curry, N. Grannis, P. Mullen, Colleen Noll, W. J. Hill Supplemental Replies due by 9/7/2012. Supplemental Responses due by 8/31/2012.. Signed by Judge Lucy H. Koh on 8/9/12. (Attachments: # 1 cert of service)(mpb, COURT STAFF) (Filed on 8/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-1496 LHK (PR)

STEVEN RICE,

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Plaintiff,

ORDER PROVIDING RAND SUMMARY
JUDGMENT NOTICE AND SETTING
NEW BRIEFING SCHEDULE

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vs.
OFFICER J. RAMSEY, et al.,
Defendants.

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United States District Court
For the Northern District of California

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Plaintiff Steven Rice, a state prisoner, filed the above-titled pro se civil rights action pursuant
to 42 U.S.C. § 1983. Defendants have filed a motion to dismiss for failure to exhaust administrative
remedies and a motion for summary judgment. Plaintiff has filed his opposition, and Defendants
have filed their reply to the opposition. In his opposition, Plaintiff concedes he has not exhausted
his administrative remedies as to his First Amendment claim relating to the denial of the Suhoor1
meals. (Opp'n at 17.)
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, 684 F.3d 934, 935,
940-41 (9th Cir. 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.

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Suhoor meals are eaten by Muslims before sunrise during the month of Ramadan.

Order Providing Rand Summary Judgment Notice and Setting New Briefing Schedule
G:\PRO-SE\SJ.LHK\CR.09\Rice1496.RandNotice.wpd

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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 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 962-63.2

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In order to allow Plaintiff time to oppose the pending motion for summary judgment taking
United States District Court
For the Northern District of California

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into account this Rand summary judgment notice, the Court now sets the following new briefing
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schedule on Defendants' motion for summary judgment: No later than August 31, 2012, Plaintiff
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must file and serve a supplemental opposition because he has already filed an opposition. No later
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than September 7, 2012, Defendants shall file and serve their supplemental reply. No further
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extensions of time will be granted in this case absent exigent circumstances.
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IT IS SO ORDERED.
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DATED:
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8/9/12
LUCY H. KOH
United States District Judge

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Woods also requires that pro se prisoner-plaintiffs be given notice of what is required of
them to oppose motions to dismiss for failure to exhaust administrative remedies at the time of filing
of the motions. 684 F.3d at 940-41. However, because Plaintiff concedes nonexhaustion of the First
Amendment claim at issue (opp'n at 17), the Court need not provide this notice. In any event, the
Court notes that at the time Defendants filed their motion to dismiss, Defendants reiterated the
holding of Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), and explained to Plaintiff
what he must do to oppose a motion to dismiss for failure to exhaust administrative remedies.
(MTD at 1.) Defendants informed Plaintiff that he "may provide evidence to the Court to dispute
the evidence Defendants present." (Id.) And, as mentioned above, instead of disputing the evidence
presented by Defendants, Plaintiff conceded nonexhaustion of the claim at issue.
Order Providing Rand Summary Judgment Notice and Setting New Briefing Schedule
G:\PRO-SE\SJ.LHK\CR.09\Rice1496.RandNotice.wpd
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