Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending are the undersigned's findings and recommendations to resolve defendants' October 7, 2011 motion for summary judgment, defendants' motion for leave to file a supplemental summary judgment motion, and plaintiff's motions (1) for a 60-day extension of time to file objections to the findings and recommendations, (2) for a court order granting him "PLU Status," and (3) for a court order compelling R.J. Donovan State Prison to ship plaintiff's property to him at California State Prison, Sacramento. Dckt. Nos. 99-103.
In the findings and recommendations issued June 29, 2012, the undersigned recommended that defendants' motion for summary judgment be granted in part. However, in light of recent Ninth Circuit case authority and to ensure that plaintiff has "fair, timely and adequate notice" of what is required of him to oppose defendants' motion for summary judgment, the court must vacate those findings and recommendations, and deny the motion without prejudice to its re-filing, and to concurrently serving plaintiff with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, ___ F.3d ___, Nos. 09-15548, 09-16113, 2012 U.S. App. LEXIS 13779 (9th Cir. July 6, 2012) ("The only satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand and Wyatt is to provide such notice at the time that the relevant motions are filed." (emphasis added)); Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state that the court has required that it be given and that it be set forth in a separate document that is served with the moving papers).
Since the issuance of the June 29, 2012 findings and recommendations, defendants have filed a motion for leave to file a supplemental motion for summary judgment. Dckt. No. 100. Defendants argue that they could not reasonably foresee that the undersigned would consider evidence of record not filed with the summary judgment motion or opposition (rather, filed in response to another motion on the docket) in determining defendants' entitlement to summary judgment. Defendants believe that the claims that would remain should the court adopt the June 29, 2012 findings and recommendations can be disposed of through summary judgment, obviating the need for trial. Plaintiff has not opposed defendants' motion for leave to file a supplemental summary judgment motion and the time for doing so has passed. Accordingly, in the interest of judicial economy, the motion is granted. Defendants may include the new arguments and/or evidence they have noted in the motion when they re-file and re-serve their motion for summary judgment as required by Woods. See Dckt. No. 100 at 5.
Because the June 29, 2012 findings and recommendations are vacated, plaintiff's motion for an extension of time to object thereto is moot.
Finally, plaintiff's requests that the court order that he be granted PLU status and provided his property from R.J. Donovan are denied without prejudice. Plaintiff has not indicated in either motion that he has completed the administrative process available at his institution with regard to these complaints. In addition, because the findings and recommendations regarding the summary judgment motion have been vacated and the motion has not yet been re-served, plaintiff is not currently facing a court deadline. If plaintiff is unable to obtain his property through the prison appeals process, he may again seek relief from the court.
Accordingly, IT IS HEREBY ORDERED that:
1. The June 29, 2012 findings and recommendations (Dckt. No. 99) are vacated.
2. Defendants' motion for summary judgment (Dckt. No. 49) is denied without prejudice.
3. Within thirty days of the date of this order, defendants may re-file and re-serve their motion for summary judgment, with the additional argument and/or evidence indicated in their motion to file a supplemental motion for summary judgment. Defendants must contemporaneously serve with the motion, but in a separate document, a copy of the attached "Rand Notice,"which provides plaintiff with notice of the requirements for opposing a motion for summary judgment. Failure to do so may constitute grounds for denial of the motion.
4. If defendants re-serve their motion, plaintiff may thereafter file and serve an amended or supplemental opposition within thirty days. If plaintiff fails to file an amended or supplemental opposition, the court will consider his existing opposition in resolving defendants' motion.
5. If plaintiff files an amended or supplemental opposition, defendants may thereafter file an amended reply within fourteen days.
6. Plaintiff's motion for an extension of time to object to the June 29, 2012 findings and recommendations (Dckt. No. 101) is denied as moot.
7. Plaintiff's motion for an order granting him PLU status (Dckt. No. 102) and his motion for an order compelling R.J. Donovan State Prison to ship him his property ...