Opinion
Case No.: 1:14-cv-02039-SAB (PC)
12-01-2016
JEREMIAH D. VICKERS, Plaintiff, v. SGT. MALDONADO, et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SUMMARY JUDGMENT, WITHOUT PREJUDICE, FOR FAILURE TO PROVIDE RAND NOTICE [ECF No. 44]
Plaintiff Jeremiah D. Vickers, a state prisoner, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to the jurisdiction of a United States Magistrate Judge. (ECF Nos. 6, 20.)
On November 29, 2016, Defendants Baley, Gomez, Hidden, Maldonado, Murphy, Rodriguez, Sanchez filed a combined motion for summary judgment. (ECF No. 44.) They also filed a request for judicial notice in support of that motion. (ECF No. 45.)
In Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), the Ninth Circuit held that a pro se prisoner plaintiff must be provided with "fair notice" of the requirements for opposing a motion for summary judgment at the time the motion is brought. Review of the current motion shows that Defendants did not provide Plaintiff with a Rand notice upon the filing of the motion for summary judgment. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Although a notice of motion was filed, (ECF No. 44, pp. 1-2), it does not contain the information required, in the format required, as explained by the Ninth Circuit in Rand. See id. at 961 (notice must apprise prisoner of what is required under Federal Rule of Civil Procedure 56, including right to file counter-affidavits or other responsive evidentiary materials, and effect of losing on summary judgment, in clear language and in a clear and conspicuous manner.)
Since Defendants failed to provide Plaintiff with the required notice concurrent with the filing of the motion for summary judgment and request for judicial notice in support of that motion, Defendants' motion and related judicial notice request shall be denied, without prejudice, subject to refiling with the appropriate notice to Plaintiff. Wood v. Carey, 684 F.3d at 936, 938-941.
The Court is in receipt of Defendants' courtesy copy of Plaintiff's deposition provided in compliance with Local Rule 133(j). Defendants are advised that they need not provide another copy of that deposition to the Court.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' motion for summary judgment, (ECF No. 44), is DENIED WITHOUT PREJUDICE;IT IS SO ORDERED. Dated: December 1 , 2016
2. Defendants' request for judicial notice, (ECF No. 45) is DENIED WITHOUT PREJUDICE;
2. Defendants shall file their motion for summary judgment and request for judicial notice within fourteen (14) days of the date of entry of this order, and shall provide Plaintiff with the appropriate Rand notice; and
3. Plaintiff shall file his opposition to the motion for summary judgment within twenty one (21) days of the date of service of the re-filed motion.
/s/_________
UNITED STATES MAGISTRATE JUDGE