UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 29, 2012
TERRONEZ, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
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
I. RELEVANT PROCEDURAL HISTORY
Anthony Gaston ("Plaintiff") is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 27, 2008. (Doc. 1.) This action now proceeds on the First Amended Complaint, filed by Plaintiff on May 4, 2009, against defendant Correctional Officer Lisa Terronez ("Defendant") for violations of Plaintiff's rights under the Eighth Amendment and the Americans with Disabilities Act ("ADA"). (Doc. 8.)
The parties to this action have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) for all further proceedings, including trial and entry of final judgment. (Docs. 5, 16.)
On May 18, 2012, Defendant filed a motion for summary judgment. (Doc. 56.) On July 16, 2012, Plaintiff filed an opposition to the motion, and on July 30, 2012, Plaintiff filed a supplemental opposition. (Docs. 63, 64.) Defendant did not file a reply.
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, and the notice given in this case some three years prior does not suffice. 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. 62.) 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, 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 documents filed on July 16, 2012 and July 30, 2012, or (2) withdraw them and file an amended opposition.
Based on the foregoing, 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'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 documents, filed on July 16, 2012 and July 30, 2012, will be considered in resolving Defendant's motion for summary judgment; and
3. If Plaintiff elects to file an amended opposition, Defendant may file a reply pursuant to Local Rule 230(l).
IT IS SO ORDERED.
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