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Tony Cobos v. E. Greenman

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 28, 2012

TONY COBOS,
PLAINTIFF,
v.
E. GREENMAN, ET AL.,
DEFENDANTS.

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

ORDER ADDRESSING REQUEST FOR CLARIFICATION (Doc. 37.) ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION TO CROSS-MOTION FOR SUMMARY JUDGMENT AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY-ISSUED SUMMARY JUDGMENT NOTICE THIRTY-DAY DEADLINE

ORDER VACATING MOTIONS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY (Docs. 24, 25.)

I. RELEVANT PROCEDURAL HISTORY

Tony Cobos ("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 September 25, 2008. (Doc. 1.) This action now proceeds on the First Amended Complaint filed on November 6, 2009, against defendants Dr. E. Greenman and Dr. S. Suryadevara, for inadequate medical care in violation of the Eighth Amendment.*fn1 (Doc. 9.)

On December 14, 2011, Plaintiff filed two motions for summary judgment, one against defendant Greenman, and one against defendant Suryadevara. (Docs. 24, 25.) On January 2, 2012, Defendants filed an opposition to the motions. (Doc. 27.) On March 21, 2012, Plaintiff filed another motion for summary judgment. (Doc. 29.) On April 9, 2012, Defendants filed an opposition to the March 21, 2012 motion, and a cross-motion for summary judgment. (Doc. 30.) On May 16, 2012, Plaintiff filed a reply to Defendants' opposition. (Doc. 32.) On August 13, 2012, Plaintiff filed an opposition to Defendants' cross-motion. (Doc. 36.) On August 20, 2012, Defendants filed a reply to Plaintiff's opposition. (Doc. 38.)

II. OPPORTUNITY FOR PLAINTIFF TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION, IF HE SO WISHES

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. On July 10, 2012, the Court provided the requisite notice by re-serving a copy of the Second Informational Order, which includes a summary judgment notice, upon Plaintiff. (Doc. 34.) By separate order entitled "Amended Second Informational Order - Notice and Warning of Requirements for Opposing Defendants' Motion for Summary Judgment," issued concurrently with this order, the Court has again provided the requisite notice. At this juncture, Plaintiff shall be allowed the opportunity to file an amended opposition to Defendants' cross-motion, if he so wishes. 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 August 13, 2012, or (2) withdraw it and file an amended opposition.

III. ORDER OF CLARIFICATION

On August 10, 2012, Plaintiff filed a request for clarification of the Court's order of July 10, 2012, which directed the Clerk to re-serve a copy of the Second Informational Order upon Plaintiff. (Doc. 37.) Plaintiff explains that he received the Second Informational Order, but he expresses concern that he did not also receive a "motion to dismiss notice" or "summary judgment notice."

Plaintiff is advised that the "notices" he describes are not separate documents, but are merely contained within the language of the Second Informational Order. Thus, since Plaintiff received the Second Informational Order, he has already received the "notices."

IV. CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's request for clarification, filed on August 10, 2012, is RESOLVED;

2. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition to Defendants' cross-motion for summary judgment and file an amended opposition;

3. If Plaintiff does not file an amended opposition in response to this order, his existing opposition, filed on August 13, 2012, will be considered in resolving Defendants' cross-motion for summary judgment;

4. If Plaintiff elects to file an amended opposition, Defendants' existing reply, filed on August 20, 2012, will not be considered and they may file an amended reply pursuant to Local Rule 230(l); and

5. In light of 28 U.S.C. § 476(a)(1), the Civil Justice Reform Act, Plaintiff's motions for summary judgment, filed on December 14, 2011, are HEREBY DEEMED VACATED from the Court's calendar to allow time for the filing of an amended opposition and amended reply, pursuant to this order.

IT IS SO ORDERED.


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