Opinion
CASE NO. 1:08-cv-01038-LJO-GBC (PC) Doc. 41 Doc. 100 Doc. 104
08-07-2012
KEVIN GUNN, Plaintiff, v. JAMES TILTON, et al., Defendants.
ORDER PERMITTING PLAINTIFF
OPPORTUNITY TO WITHDRAW
OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF SEPARATELY-
ISSUED SUMMARY JUDGMENT NOTICE
TWENTY-ONE DAY DEADLINE
I. Procedural History and Woods v. Carey
Plaintiff Kevin Gunn ("Plaintiff") is a state prisoner proceeding in forma pauperis ("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. On May 19, 2010, Defendants filed a motion for summary judgment. Doc. 41. On July 31, 2012, Plaintiff filed an opposition in response to the motion for summary judgment. Doc. 100; Doc. 101; Doc. 102; Doc. 103. On August 6, 2012, Defendants filed a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 104.
On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for opposing a defendant's motion for summary judgment should be issued contemporaneously when a defendant files a motion for summary judgment. Woods v. Carey, --- F.3d ---, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012). In order to address the time delay between providing notice and the filing of Defendants' motion, Defendants filed a notice to Plaintiff, in accordance with Woods.
II. Plaintiff has Option to (1) Stand on Existing Opposition to Motion for Summary Judgment or (2) File Amended Opposition Per Amended Second Informational Order
In light of the separately-issued notice pursuant to Woods, the Court will provide Plaintiff with two options upon receipt of this order. Plaintiff may either: 1) stand on his previously-filed opposition; or 2) withdraw the existing opposition and file an amended opposition.
Accordingly, it is HEREBY ORDERED that:
1. Within twenty-one (21) days from the date of service of this order, Plaintiff may elect to:
a. Stand on his existing opposition already submitted to the Court; or
b. Withdraw his opposition and file an amended opposition;
2. If Plaintiff does not elect to file an amended opposition in response to this order within twenty-one (21) days, the Court will consider his existing opposition in resolving Defendants' motion for summary judgment;
3. If Plaintiff elects to file an amended opposition, the Court will not consider Defendants' existing reply; and
4. Defendants may file an amended reply pursuant to Local Rule 230(l). IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE