Moses Clark v. Larry Small

Filing 50

Order Providing Notice To Pro Se Prisoner of Requirements For Opposing Summary Judgment Pursuant To Klingele / Rand And Setting Briefing Schedule. It is Ordered that Defendants' Motion for Summary Judgment has been calendared for hearing on December 20, 2010, at 10:30 a.m., in Courtroom 14. Plaintiff's Opposition must be filed by December 6, 2010. Defendants Reply to that Opposition is due by December 13, 2010. At the time appointed for hearing, the Court will, in its discretio n, consider Defendants' motion submitted on the papers and will issue its written opinion soon thereafter. Thus, unless otherwise ordered, no appearances are required and no oral argument will be heard. Signed by Judge M. James Lorenz on 10/18/2010. (All non-registered users served via U.S. Mail Service)(srm) Modified on 10/18/2010 to update docket text (srm).

-JMA Moses Clark v. Larry Small

Doc. 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because Plaintiff is no longer incarcerated, he may not be entitled to a Klingele / Rand warning. See Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986) (holding that Klingele notice is not required for pro se litigants who are not incarcerated); Pl.'s Notice of Change of Address [Doc. No. 42]. However, because Plaintiff was incarcerated when he initiated this action, is still proceeding without counsel, and the allegations in his Amended Complaint challenge the conditions of confinement at Calipatria State Prison, the Court will issue this Order in an abundance of caution in order to ensure that Plaintiff is aware of his obligations under FED.R.CIV.P. 56. Klingele and Rand together require the district court "as a bare minimum," to ensure that a pro se prisoner has "fair notice of the requirements of the summary judgment rule." Klingele, 849 F.2d at 411 (quotations omitted); Rand, 154 F.3d at 962.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
MOSES CLARK, CDCR #F-99760,
Civil Case No. 09-1484 L (JMA)

Plaintiff, vs.

LARRY SMALL, Warden; R. MADDEN, Correctional Captain, Defendants.

ORDER PROVIDING NOTICE TO PRO SE PRISONER OF REQUIREMENTS FOR OPPOSING SUMMARY JUDGMENT PURSUANT TO KLINGELE / RAND AND SETTING BRIEFING SCHEDULE

This notice is required1 to be given to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988):2 Defendants have filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 49], 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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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, and 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 by 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. Conclusion and Order Accordingly, IT IS ORDERED that Defendants' Motion for Summary Judgment has been calendared for hearing on Monday, December 20, 2010, at 10:30 a.m., in Courtroom 14. Your Opposition (including any supporting documents) must be filed with the Court and served on all parties by Monday, December 6, 2010. If you do not wish to oppose Defendants'

Motion, you should file and serve a "Notice of Non-Opposition" by that same date to let both the Court and Defendants know that the Motion is unopposed. If you do file and serve an Opposition, Defendants must file and serve their Reply to that Opposition by Monday, December 13, 2010. /// /// /// /// /// /// ///
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At the time appointed for hearing, the Court will, in its discretion, consider Defendants' Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 as submitted on the papers, and will issue its written opinion soon thereafter. See S. D. CAL. CIVLR 7.1(d)(1). Thus, unless otherwise ordered, no appearances are required and no oral argument will be heard. IT IS SO ORDERED. DATED: October 18, 2010 M. James Lorenz United States District Court Judge COPY TO: HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

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