Smith v. Washington Department of Corrections et al
Filing
29
ORDER RE-NOTING 17 Motion for Summary Judgment and Giving Plaintiff Proper Warnings with the Opportunity to Submit Additional Briefing signed by Judge J Richard Creatura. Re-Noting Date 1/4/2013. (MET) cc: plaintiff
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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TONY SMITH,
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CASE NO. C11-5731 BHS-JRC
Plaintiff,
v.
WASHINGTON DEPARTMENT OF
CORRECTIONS et al.
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ORDER RE-NOTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT AND GIVING PLAINTIFF
PROPER WARNINGS WITH THE
OPPORTUNITY TO SUBMIT
ADDITIONAL BRIEFING
Defendant.
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This 42 U.S.C. §1983 civil rights action has been referred to the undersigned
18 Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate
19 Judges Rules MJR 1, MJR 3, and MJR 4.
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The Court reviewed this case and note that defendants have failed to give plaintiff
21 warnings contemporaneously with the filing of the dispositive motion as required. See, Rand v.
22 Rowland, 113 F.3d 1520 (9th Cir. 1997).
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24 ORDER RE-NOTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND GIVING
PLAINTIFF PROPER WARNINGS WITH THE
OPPORTUNITY TO SUBMIT ADDITIONAL
BRIEFING - 1
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On July 6, 2012, the Ninth Circuit issued its opinion in Woods v. Carey, 684 F3d. 934 (9th
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Cir. 2012) and held that failure to give plaintiff warnings at the time of moving for summary
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judgment required reversal. Woods, 684 F.3d at 941.
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The Ninth Circuit stated:
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...We express the same faith as other circuits in “trust[ing] that counsel for the
defendants in prisoner civil rights cases in this circuit will lift this new burden
from the judges’ shoulders, by henceforth including in any motion for summary
judgment [or motion to dismiss] in a case where the plaintiff is not assisted by
counsel a short and plain statement [as required under Rand and Wyatt ].” Lewis,
689 F.2d at 102. If, however, such defendants fail to provide appropriate notice,
“the ultimate responsibility of assuring that the prisoner receives fair notice
remains with the district court.” Rand, 154 F.3d at 960.
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It becomes this Court’s duty to provide proper warnings as they were not given with the
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12 motion.
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If one of the parties files a motion for summary judgment pursuant to Fed. R. Civ.
P. 56, the opposing party should acquaint him/herself with Fed. R. Civ. P. 56.
Fed. R. Civ. P. 56 requires a nonmoving party to submit affidavits or other
evidence in opposition to a motion for summary judgment if the moving party has
shown the absence of issues of material fact and an entitlement to judgment as a
matter of law. A nonmoving party may not rest upon the mere allegations or
denials of prior pleadings. Rather, successful opposition to a motion for summary
judgment requires the nonmoving party to set forth, through affidavits or other
evidence, specific facts showing a genuine issue for trial. Failure by the
nonmoving party to oppose a summary judgment motion or to present counter
evidence could result in the court accepting the moving party’s evidence as the
truth, and entering final judgment in favor of the moving party without a full trial.
Rand v. Rowland, 113 F.3d 1520 (9th Cir. 1997).
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Plaintiff will have until December 21, 2012 to submit additional briefing. The plaintiff’s
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21 brief will be limited to ten pages, but there is not a page limit on exhibits or affidavits.
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24 ORDER RE-NOTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND GIVING
PLAINTIFF PROPER WARNINGS WITH THE
OPPORTUNITY TO SUBMIT ADDITIONAL
BRIEFING - 2
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Defendants may file a ten page response on or before December 28, 2012. The Clerk’s
2 Office is directed to remove and re-note Defendants’ motion for summary judgment (ECF No.
3 17), for January 4, 2013.
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Dated this 19th day of November, 2012.
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A
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J. Richard Creatura
United States Magistrate Judge
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24 ORDER RE-NOTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND GIVING
PLAINTIFF PROPER WARNINGS WITH THE
OPPORTUNITY TO SUBMIT ADDITIONAL
BRIEFING - 3
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