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Robert Benyamini v. D. Manjuano

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 10, 2012

ROBERT BENYAMINI,
PLAINTIFF,
v.
D. MANJUANO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER PERMITTING PLAINTIFF TO WITHDRAW OPPOSITION, AND FILE AMENDED OPPOSITION, IF HE SO WISHES

Plaintiff is a state prisoner proceeding pro se in this civil rights action. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

On January 6, 2012, Defendants filed a motion for summary judgment, which is now pending. On March 2, 2012, Plaintiff filed an opposition to the motion. On September 17, 2009, Plaintiff was served with a Rand warning, informing Plaintiff of his rights and responsibilities in opposing a motion for summary judgment. In light of the Ninth Circuit's decision in Woods v. Carey, 684 F.3d 934 (9 th Cir. 2012), Plaintiff will be provided an opportunity to file supplemental briefing in opposition to the pending motion for summary judgment in this action.

In Woods, the Ninth Circuit required that a prisoner proceeding pro se with a civil rights action, such as Plaintiff, be provided with "fair notice" of the requirements for opposing a motion for summary judgment at the time the motion is brought. Woods, 683 F.3d at 684. Thus, the notice given by the Court in this case almost three years ago does not suffice.

The Court finds good cause at this juncture to open a thirty-day time period for Plaintiff to file further opposition to the pending motion for summary judgment, if he so wishes. The Court will not consider multiple oppositions, however, and Plaintiff has two options upon receipt of this order. Plaintiff may either (1) stand on his previously filed opposition or (2) withdraw it and file an amended opposition. The amended opposition, if any, must be complete in and of itself and must not refer back to any of the opposition documents filed by Plaintiff on March 2, 2012. *fn1

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff may, within thirty days of the date of service of this order, withdraw his opposition and file an amended opposition to Defendants' motion for summary judgment.

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 summary judgment.

3. If Plaintiff elects to file an amended opposition, Defendants may file a reply pursuant to Local Rule 230(l).


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