Holt v. Nicholas

Full title: VIRGIL E. HOLT, Plaintiff, v. R. NICHOLAS, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Aug 8, 2012

CASE NO. 1:09-cv-00800-AWI-GBC (PC) (E.D. Cal. Aug. 8, 2012)

Opinion

CASE NO. 1:09-cv-00800-AWI-GBC (PC)

08-08-2012

VIRGIL E. HOLT, Plaintiff, v. R. NICHOLAS, et al., Defendants.

ORDER PERMITTING PLAINTIFF

OPPORTUNITY TO WITHDRAW

OPPOSITION AND FILE AMENDED

OPPOSITION IN LIGHT OF SEPARATELY-

ISSUED SUMMARY JUDGMENT NOTICE

(Doc. 79; Doc. 86)

TWENTY-ONE DAY DEADLINE

I. Procedural History and Woods v. Carey

Plaintiff Virgil E. Holt, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 4, 2009. Doc. 1. On June 11, 2012, Defendants filed a motion for summary judgment. Doc. 79. On August 1, 2012, Defendants filed a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 86.

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. Doc. 86.

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.

______________________

UNITED STATES MAGISTRATE JUDGE