United States District Court, E.D. California
GLEN A. DAVIS, Plaintiff,
A. HERRICK and R. PARKER, Defendants.
ORDER CONVERTING MOTION FOR JUDGMENT ON THE PLEADINGS
TO MOTION FOR SUMMARY JUDGMENT (ECF NO. 24)
Davis ("Plaintiff") is a state prisoner proceeding
pro se and in forma pauperis with this
civil rights action pursuant to 42 U.S.C. § 1983. On May
16, 2017, Defendants filed a motion for judgment on the
pleadings on the basis that this action is barred by the
statute of limitations. (ECF No. 24).
20, 2017, Plaintiff filed a response to the motion. (ECF No
25). In his response, Plaintiff states that the facility he
is housed at is on modified institutional lockdown, so he has
not had adequate time to prepare his opposition and research
case law. Plaintiff also alleges that he was in
administrative segregation before he filed this case, and was
not given adequate time to do any sort of legal research or
attend the law library. Instead of providing evidence that he
was in administrative segregation and was not given adequate
time to do legal research or attend the law library,
Plaintiff asks the Court to contact the California Substance
Abuse Treatment Facility to verify his allegations.
judgment on the pleadings is properly granted when, taking
all the allegations in the pleadings as true, the moving
party is entitled to judgment as a matter of law.”
Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th
Cir. 1998). “[J]udgment on the pleadings is improper
when the district court goes beyond the pleadings to resolve
an issue; such a proceeding must properly be treated as a
motion for summary judgment.” Hal Roach Studios,
Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550
(9th Cir. 1989). See also Fed.R.Civ.P. 12(d)
(“If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.”).
other things, Plaintiff appears to be arguing that he is
entitled to equitable tolling. See, e.g.,
Addison v. State of California, 21 Cal.3d 313
(1978). Because the resolution of this issue will require the
Court to go beyond the pleadings, the Court will convert the
motion for judgment on the pleadings into a motion for
summary judgment under Rule 56 of the Federal Rules of Civil
parties will be given until July 21, 2017, to submit any
evidence that they want the Court to consider. Because it
appears that Plaintiff has not yet been able to fully prepare
an opposition to what was the motion for judgment on the
pleadings, Plaintiff may also file a response to the motion.
Replies, and objections to the opposing parties'
evidence, will be due July 28, 2017.
Court recognizes that discovery has not yet been opened in
this case. Accordingly, the parties will be given until July
7, 2017, to file a motion to open discovery. In addition to
listing what discovery the filing party needs and why it is
relevant, the motion should state whether the filing party
believes that the deadline to submit evidence should be
extended so that the discovery can be completed before
evidence must be submitted. The deadline for filing a reply
to a motion to open discovery will be July 14, 2017.
AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
to Rand v. Rowland, 154 F.3d 952, the Court hereby
notifies Plaintiff of the following rights and requirements
for opposing defendants' motion for summary judgment.
defendants have made a motion for summary judgment by which
they seek to have your case dismissed. A motion for summary
judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case.
tells you what you must do in order to oppose a motion for
summary judgment. Generally, summary judgment must be granted
when there is no genuine issue of material fact- that is, if
there is no real dispute about any fact that would affect the
result of your case, the party who asked for summary judgment
is entitled to judgment as a matter of law, which will end
your case. When a party you are suing makes a motion for
summary judgment that is properly supported by declarations
(or other sworn testimony), you cannot simply rely on what
your complaint says. Instead, you must set out specific facts
in declarations,  depositions, answers to interrogatories,
or authenticated documents, as provided in Rule [56(c)],
that contradict the facts shown in the defendant's
declarations and documents and show that there is a genuine
issue of material fact. If you do not submit your own
evidence in opposition, summary judgment, if appropriate, may
be entered against you. If summary judgment is granted, your
case will be dismissed and there will be no trial.
DISTRICT OF CALIFORNIA LOCAL RULE REQUIREMENTS
responsible for filing all evidentiary documents cited in the
opposing papers. Local Rule 260(b). If additional discovery
is needed to oppose summary judgment, Local Rule 260(b)
requires you to “provide a specification of the
particular facts on which discovery is to be had or ...