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James Eric Mallett v. J. Mcguinness

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 23, 2012

JAMES ERIC MALLETT, PLAINTIFF,
v.
J. MCGUINNESS, ET AL., DEFENDANTS.

ORDER PROVIDING PLAINTIFF OPTION TO (1) STAND ON EXISTING OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR (2) FILE AMENDED OPPOSITION PER AMENDED SECOND INFORMATIONAL ORDER Docs. 43, 46 TWENTY-ONE DAY DEADLINE

I. Procedural History, Woods v. Carey, and Contemporaneous Notice

On May 16, 2007, Plaintiff James Eric Mallett ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.

On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for opposing a defendant's motion for summary judgment should be issued contemporaneously when a defendant files a motion for summary judgment, as opposed to a year or more in advance. Woods v. Carey, --- F.3d ---, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012).

On December 15, 2010, the Court issued a second informational order, advising Plaintiff that

Defendant may file a motion for summary judgment and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 31. On April 30, 2012, Defendant filed a motion for summary judgment. Doc. 43. On May 23, 2012, Plaintiff filed an opposition to the motion for summary judgment. Doc. 46. On May 30, 2012, Defendant filed a Reply to Plaintiff's opposition. Doc. 49. In order to address the time delay between providing notice and the filing of Defendant's motion, the Court issued an amended second informational order to Plaintiff, in accordance with Woods.

II. Plaintiff has Option to (1) Stand on Existing Opposition to Motion for Summary Judgment or (2) File Amended Opposition Per Amended Second Informational Order In light of the separately-issued amended second informational order and notice pursuant to Woods, the Court will provide Plaintiff with two options upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw the existing opposition and file an amended opposition.

Accordingly, it is HEREBY ORDERED that:

1. Within twenty-one (21) days from the date of service of this order, Plaintiff may elect to:

a. Stand on his existing opposition already submitted to the Court; or

b. Withdraw his opposition and file an amended opposition;

2. If Plaintiff does not elect to file an amended opposition in response to this order within twenty-one (21) days, the Court will consider his existing opposition in resolving Defendant's motion for summary judgment;

3. If Plaintiff elects to file an amended opposition, the Court will not consider Defendant's existing reply; and

4. Defendant may file an amended reply pursuant to Local Rule 230(l).

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20120723

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