United States District Court, N.D. California
JERRY A. BURTON, Plaintiff,
BRIAN LEE, et al., Defendants.
ORDER REOPENING ACTION AFTER REMAND; REINSTATING IN
FORMA PAUPERIS STATUS; SETTING BRIEFING SCHEDULE
TIGAR, UNITED STATES DISTRICT JUDGE
2013, this suit was dismissed under 28 U.S.C. § 1915 and
plaintiff's in forma pauperis (“IFP”) status
was revoked because plaintiff had previously filed three
civil rights actions (“strikes”) that had been
dismissed for failure to state a claim. ECF No. 61. On
appeal, the Ninth Circuit determined that two of these
actions did not constitute a strike under section 1915. ECF
No. 73. The suit was consequently remanded to this court. In
light of the remand, the Court now orders as follows, 1. This
action is REOPENED. The Clerk shall modify the docket to so
indicate. The order of dismissal (ECF No. 61) is VACATED.
Plaintiff's IFP status is REINSTATED. ECF No. 4.
Court sets the following briefing schedule:
later than 91 days from the date this order is filed,
defendants Lee and Hubbard shall file a motion for summary
judgment addressing the merits of the claims found cognizable
in the court's July 9, 2012 order of service (ECF No.
A motion for summary judgment also must be accompanied by a
Rand notice so that plaintiff will have fair, timely
and adequate notice of what is required of him in order to
oppose the motion. Woods v. Carey, 684 F.3d 934, 939
(9th Cir. 2012) (notice requirement set out in Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998), must be served
concurrently with motion for summary judgment).
defendants are of the opinion that this case cannot be
resolved by summary judgment, defendants must so inform the
Court prior to the date the motion is due.
Plaintiff's opposition to the summary judgment or other
dispositive motion must be filed with the court and served
upon defendants no later than 28 days from the date the
motion is filed. Plaintiff must bear in mind the notice and
warning regarding summary judgment provided below as he
prepares his opposition to any motion for summary judgment.
Defendants shall file a reply brief no later than 14 days
after the date the opposition is filed. The motion shall be
deemed submitted as of the date the reply brief is due. No.
hearing will be held on the motion.
Plaintiff is advised that a motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if
granted, end your case. Rule 56 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 [current Rule 56(c)],
that contradict the facts shown in the defendants'
declarations and documents and show that there is a genuine
issue of material fact for trial. 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.
Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir.
1998) (en banc) (App. A).
Rand notice above does not excuse defendants'
obligation to serve said notice again concurrently with a
motion for summary judgment. Woods, 684 F.3d at
communications by plaintiff with the court must be served on
defendants' counsel by mailing a true copy of the
document to defendants' counsel. The court may disregard
any document which a party files but fails to send a copy of
to his opponent.
Discovery may be taken in accordance with the Federal Rules
of Civil Procedure. No. further court order under Federal
Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required
before the parties may conduct discovery.
Plaintiff is responsible for prosecuting this case. Plaintiff
must promptly keep the court informed of any change of
address and must comply with the court's orders in a
timely fashion. Failure to do so may result in the dismissal
of this action for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b). Plaintiff must file a notice
of change of address in every pending case every time he is
moved to a new facility.
motion for an extension of time must be filed no later than
the deadline sought to be extended and must be ...