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Timothy Bertram v. C. Sizelove

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 23, 2012

TIMOTHY BERTRAM,
PLAINTIFF,
v.
C. SIZELOVE, 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. 73, 74 TWENTY-ONE DAY DEADLINE

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

On April 5, 2010, Plaintiff Timothy Bertram ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff alleges that Defendants were deliberately indifferent to his medical condition; that they failed to provide him a bottom bunk; that on July 14, 2009, Plaintiff had a seizure and fell from his top bunk; and that he suffered from head, neck, and shoulder injuries. Pl. Compl. at 5-8, Doc. 1. On November 22, 2010, the Court dismissed certain claims and found a cognizable claims against Defendants C. Sizelove and J. Heinzler and two Doe Defendants ("Defendants") for Eighth Amendment deliberate indifference to medical needs. Doc. 13.

On December 10, 2010, the Court issued a second informational order, advising Plaintiff that Defendants 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. 18. On June 11, 2012, Defendants filed a motion for summary judgment. Doc. 73. On July 2, 2012, Plaintiff filed an opposition to the motion for summary judgment. Doc. 74. On July 20, 2012, Defendants filed a Reply to Plaintiff's opposition. Doc. 80.

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). In order to address the time delay between providing notice and the filing of Defendants' 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 Defendants' motion for summary judgment;

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

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

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20120723

© 1992-2012 VersusLaw Inc.



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