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Robert Benyamini v. D. Manjuano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 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 OPPORTUNITY TO WITHDRAW OPPOSITION TO DEFENDANT MANDUJANO'S MOTION FOR SUMMARY JUDGMENT AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY-ISSUED SUMMARY JUDGMENT NOTICE (Doc. 106.) THIRTY-DAY DEADLINE

Plaintiff Robert Benyamini is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the Third Amended Complaint, filed on May 23, 2008, against defendants Mandujano, Wilcox, Wilkerson, and O'Grady, on Plaintiff's Eighth Amendment claims for adverse conditions of confinement. (Doc. 35.)

On August 8, 2011, defendant Mandujano filed a motion for summary judgment. (Doc. 106.) Plaintiff filed an opposition on March 2, 2012. (Doc. 164.) Defendant Mandujano did not file a reply to the opposition. The motion was submitted under Local Rule 230(l).

However, in light of the recent decision in Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012), Plaintiff must be provided with "fair notice" of the requirements for opposing a motion for summary judgment at the time the motion is brought and the notice given in this case some three years prior does not suffice. In bringing her motion, Defendant Mandujano notified Plaintiff of the cases in which he would find the law governing his obligations but that, too, does not suffice. Id.

By separate order issued on July 10, 2012, the Court provided the requisite notice. (Doc. 191.) 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. The Court will not consider multiple oppositions, however, and Plaintiff has two options upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition of March 2, 2012, or (2) withdraw it and file an amended opposition.

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition to defendant Mandujano's motion for summary judgment and file an amended opposition;

2. If Plaintiff does not file an amended opposition in response to this order, his existing opposition will be considered in resolving Defendant Mandujano's motion for summary judgment; and

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

IT IS SO ORDERED.

20120823

© 1992-2012 VersusLaw Inc.



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