UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 18, 2012
JAMES E. TILTON, ET AL.,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER PROVIDING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY-ISSUED SUMMARY JUDGMENT NOTICE THIRTY DAY DEADLINE
Plaintiff Lamont Shepard is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants E. Dela Cruz, P. Garcia, L. A. Martinez, R. Perez, J. Soto, and A. Trevino for violation of the Eighth Amendment.
On April 9, 2012, Defendants filed a motion for partial summary judgment. Plaintiff filed an opposition on April 24, 2012, Defendants filed a reply on April 30, 2012, and the motion was submitted under Local Rule 230(l).
However, in light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 2626912, at *5 (9th Cir. Jul. 6, 2012), Plaintiff must be provided with "fair notice" of the requirements for opposing a motion for summary judgment at the time the motion is brought and the notice given in this case a year prior does not suffice.
By separate order issued concurrently with this order, the Court provided the requisite notice. The Court will not consider two oppositions, however, and Plaintiff has two options upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw it and file an amended opposition.*fn1
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition and file an amended opposition;
2. If Plaintiff does not file an amended opposition in response to this order, his existing opposition will be considered in resolving Defendants' motion for partial summary judgment; and
3. If Plaintiff elects to file an amended opposition, Defendants' existing reply will not be considered and they may file an amended reply pursuant to Local Rule 230(l).
IT IS SO ORDERED.