Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On October 21, 2010, this court adopted recommendations of the magistrate judge addressing numerous issues in the case. Dckt. Nos. 177, 190. Of relevance here, the court ordered dismissal of certain of plaintiff's claims for failure to exhaust administrative remedies and granted summary judgment in favor of defendants on other claims.*fn1 Id. However, in light of recent Ninth Circuit case authority and to ensure that plaintiff has "fair, timely and adequate notice" of what is required of him to oppose defendants' motion to dismiss for failure to exhaust and for summary judgment, the court must vacate the portions of the October 21, 2010 order dismissing claims for failure to exhaust and granting summary adjudication of other claims in favor of defendants, because no concurrent notice was provided to plaintiff with the motion. See Dckt. Nos. 146, 170; Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012) ("The only satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand and Wyatt is to provide such notice at the time that the relevant motions are filed." (emphasis added)); Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state that the court has required that it be given and that it be set forth in a separate document that is served with the moving papers). Defendants may refile their motion to dismiss for failure to exhaust and for summary judgment and concurrently serve plaintiff with notice of the requirements for opposing a motion to dismiss for failure to exhaust and for summary judgment.
Accordingly, IT IS HEREBY ORDERED that: 1. The October 21, 2010 order (Dckt. No. 190) is vacated to the extent it granted defendants' requests for dismissal of claims as unexhausted or summary adjudication of claims;
2. Defendants' motion to dismiss claims for failure to exhaust and for summary judgment (Dckt. Nos. 146, 170) is denied without prejudice.
3. Within thirty days of the date of this order, defendants may re-file and re-serve their motion to dismiss for failure to exhaust and for summary judgment. Defendants must contemporaneously serve with the motion, but in a separate document, a copy of the attached "Rand Notice" and "Wyatt Notice," which provide plaintiff with notice of the requirements for opposing the motion. Failure to do so may constitute grounds for denial of the motion.
4. If defendants re-serve their motion, plaintiff may thereafter file and serve an amended opposition within thirty days. If plaintiff fails to file an amended opposition, the court will consider his existing opposition in resolving defendants' motion.
5. If plaintiff files an amended opposition, defendants may thereafter file an amended reply within fourteen days.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
VANCE EDWARD JOHNSON, Plaintiff, v. D.L. RUNNELS, et al., Defendants.
No. 2:04-cv-00776 LKK EFB
The court requires that you be provided with this notice regarding the requirements for opposing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
When a defendant moves for summary judgment, the defendant is requesting that the court grant judgment in defendant's favor without a trial. If there is no real dispute about any fact that would affect the result of your case, the defendant who asked for summary judgment is entitled to judgment as a matter of law, which will end your case against that defendant. A motion for summary judgment will set forth the facts that the defendant asserts are not reasonably subject to dispute and that entitle the defendant to judgment.
To oppose a motion for summary judgment, you must show proof of your claims. To do this, you may refer to specific statements made in your complaint if you signed your complaint under penalty of perjury and if your complaint shows that you have personal knowledge of the matters stated. You may also submit declarations setting forth the facts that you believe prove your claims, as long as the person who signs the declaration has personal knowledge of the facts stated. You may also submit all or part of deposition transcripts, answers to interrogatories, admissions, and other authenticated documents. For each of the facts listed in the defendant's Statement of Undisputed Facts, you must admit the facts that are undisputed, and deny the facts that are disputed. If you deny a fact, you must cite to the proof that you rely on to support your denial. See L.R. 260(b). If you fail to contradict the defendant's evidence with your own evidence, the court may accept the defendant's evidence as the truth and grant the motion. The court will consider a request to postpone consideration of the defendant's motion if you submit a declaration showing that for a specific reason you cannot present such facts in your opposition. If you do not respond to the motion, the court may consider your failure to act as a waiver of your opposition. See L.R. 230(l).
If the court grants the defendant's motion, whether opposed or unopposed, judgment will be entered for that defendant without a trial and the ...