Soares v. Paramo et al

Filing 89

ORDER Granting Request to Recall Plaintiff's Previous Motion for Summary Judgment and Setting Briefing Schedule. The Court Grants Plaintiff's request (ECF No. 88 ) to renew his previously filed Motion for Summary Judgment (ECF No. 55 ). The Court will consider Plaintiff's Motion together with Defendants' Motion (ECF No. 84 ), currently set for hearing as submitted and without oral argument on 11/4/2016. Defendants may file an Opposition to Plaintiff's Motion (ECF No. 55 ) on or before Friday, 10/21/2016. Plaintiff may file a Reply to Defendants' Opposition on or before 10/28/2016. Signed by Judge Barry Ted Moskowitz on 10/4/2016.(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MANUEL M. SOARES,
CDCR #F-39579,

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ORDER GRANTING REQUEST TO
RECALL PLAINTIFF’S PREVIOUS
MOTION FOR SUMMARY
JUDGMENT AND SETTING
BRIEFING SCHEDULE

Plaintiff,

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Case No.: 3:13-cv-2971-BTM-RBB

vs.
D. PARAMO, et al.,
Defendants.

[ECF No. 88]

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Currently pending before the Court is Defendants’ Motion for Summary Judgment

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(ECF No. 84), set for hearing without oral argument pursuant to S.D. Cal. CivLR

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7.1(d)(1) on Friday, November 4, 2016.

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On September 13, 2016, the Court provided Plaintiff, a prisoner at the California

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Health Care Facility in Stockton, California, with notice of the requirements for opposing

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summary judgment pursuant to Klingele v. Eikenberry, 849 409 (9th Cir. 1988) and Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) (ECF No. 85). Plaintiff’s opposition

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is due October 21, 2016; Defendants’ Reply is due October 28, 2016. (Id. at 2.)

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On September 21, 2016, Plaintiff filed a “Notice to Recall” his own previously

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filed Motion for Summary Judgment (ECF No. 88). In this Notice, Plaintiff asks the

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Court to “recall” the Motion for Summary Judgment he first filed on March 15, 2016

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(ECF No. 55), but before the close of discovery. The Court previously denied Plaintiff’s
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3:13-cv-2971-BTM-RBB

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Motion for Summary Judgment without prejudice as premature on May 25, 2016, when it

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granted Plaintiff’s subsequently filed Motion for leave to amend and/or join additional

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parties his pleadings (ECF No. 61).1

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Instead of filing a new Motion for Summary Judgment, Plaintiff now asks the

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Court to decide his previously-filed Motion on the merits as it was originally submitted

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before the September 12, 2016 cut-off date, and to take it under submission together with

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Defendants’ Motion for Summary Judgment (ECF No. 88).

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Conclusion and Order

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Good cause appearing, the Court GRANTS Plaintiff’s request (ECF No. 88) to

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renew his previously filed Motion for Summary Judgment (ECF No. 55).
The Court will consider Plaintiff’s Motion together with Defendants’ Motion (ECF

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No. 84), currently set for hearing as submitted and without oral argument on November

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4, 2016. Defendants may file an Opposition to Plaintiff’s Motion (ECF No. 55) on or

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before Friday, October 21, 2016.2 Plaintiff may file a Reply to Defendants’ Opposition

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on or before October 28, 2016.

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IT IS SO ORDERED.
Dated: October 4, 2016

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Plaintiff later attempted to withdraw his Motion to Join/Amend, indicating that he instead
intended to stand on his original pleadings (ECF No. 67). Because the Court had already
granted the Motion Plaintiff sought to withdraw, it denied his motion to withdraw as moot,
and affirmed that the dates and deadlines set out in Judge Brooks’ October 9, 2015
Scheduling Order would remain in effect (ECF No. 68). Pursuant to that Order, “[a]ll other
pretrial motions [were to] be filed by September 12, 2016.” (ECF No. 43 at 3 ¶ 8.)
Plaintiff is reminded that he must also file his own Opposition to Defendants’ Motion for
Summary Judgment (ECF No. 84) on or before October 21, 2016, as set forth in the
Court’s Klingele / Rand Order (ECF No. 85).
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3:13-cv-2971-BTM-RBB