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Gilbert Colon v. Dr. St. Clair

August 23, 2012

GILBERT COLON,
PLAINTIFF,
v.
DR. ST. CLAIR, ET AL.,
DEFENDANTS.



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

ORDER GRANTING IN PART DEFENDANTS' REQUEST (Doc. 93.) ORDER GRANTING REQUEST FOR SUPPLEMENTAL BRIEFING SCHEDULE ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY- ISSUED SUMMARY JUDGMENT NOTICE THIRTY-DAY DEADLINE ORDER DENYING REQUEST TO REINSTATE MOTION FOR SUMMARY JUDGMENT, UNTIL AFTER TIME IS ALLOWED FOR AMENDMENT OF OPPOSITION AND REPLY

I. RELEVANT PROCEDURAL HISTORY

Gilbert Colon ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 28, 2007. (Doc. 1.) This action now proceeds on Plaintiff's Amended Complaint filed on June 5, 2008, against defendants Sydenstricker, Peterson, Thomatos, and Witwer ("Defendants"), for inadequate medical care in violation of the Eighth Amendment. (Doc. 13.)*fn1

On September 15, 2011, Defendants filed a motion for summary judgment, and on March 14, 2012, Plaintiff filed an opposition to the motion. (Docs. 74, 90.) On March 21, 2012, the Court entered an order granting Defendants' motion to reopen discovery for limited purpose, establishing a deadline of May 31, 2012 for completion of discovery, and establishing a deadline of July 31, 2012 for the filing of pretrial dispositive motions. (Doc. 91.) The Court's order also held Defendants' motion for summary judgment in abeyance pending the expiration of the new deadlines. Id.

On July 31, 2012, Defendants filed a request to reinstate their motion for summary judgment, and a request for a supplemental briefing schedule in light of the Ninth Circuit's new notice requirement. (Doc. 93.)

II. DEFENDANTS' REQUESTS

A. Request for Supplemental Briefing Schedule

Defendants request that, in light of the Ninth Circuit's new notice requirement, Plaintiff be allowed to file a supplemental opposition to Defendants' motion for summary judgment, or stand on the opposition previously filed. Defendants also request that they be allowed to file a reply brief to the opposition or supplemental opposition.

Further, Defendants suggest that the Court should strike Plaintiff's opposition filed on March 14, 2012, pursuant to Local Rule 13(b) and Fed. R. Civ. P. 11(a), because the document is not signed or dated.

Discussion

The Court finds no grounds to strike Plaintiff's opposition for lack of signature. Defendants state that the document is not signed or dated. (Doc. 93 at 2:2.) However, Plaintiff's signature, dated March 9, 2012, appears on pages 6 and 151 of the opposition, which the Court finds sufficient.*fn2

(Doc. 90 at 6, 151.)

Defendants' request for a supplemental briefing schedule shall be granted. In a recent decision in Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012), the Ninth Circuit held that Plaintiff must be provided with "fair notice" of the requirements for opposing a motion for summary judgment at the time the motion is brought. The notice given by the Court in this case some three years prior does not suffice. (Doc. 21.) Therefore, on July 10, 2012, the Court re-served the Second Informational Order, which contains the requisite summary judgment notice, upon Plaintiff. (Doc. 92.) In light of the Woods decision, good cause exists for Plaintiff to be allowed to withdraw his opposition to the motion for summary judgment and file an amended opposition, and for Defendants to be allowed to file a reply. The Court shall again provide the requisite notice by separate order entitled "Amended Second Informational Order -- Notice and Warning of Requirements for Opposing Defendants' Summary Judgment Motion," issued concurrently with this order. Plaintiff shall have 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. The Court will not consider multiple oppositions. Plaintiff's amended opposition, if any, must be complete in itself and may not refer back to the prior opposition.*fn3 If Plaintiff files an amended opposition, Defendants shall be allowed ...


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