(PC) Gustard v. McCauley

• Court: District Court, E.D. California
• Decided: March 19, 2024
• Docket: 2:17-cv-00012
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER IAN GUSTARD, Case No. 2:17-cv-00012-TLN-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF’S MOTION TO STRIKE BE DENIED AND THAT PLAINTIFF BE 14 DOUGLAS R. McCAULEY, et al., GRANTED THIRTY DAYS TO FILE AN OPPOSITION TO DEFENDANTS’ MOTION 15 Defendants. FOR SUMMARY JUDGMENT 16 ECF No. 145 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 20 Plaintiff moves to strike defendants’ motion for summary judgment for want of a Rand 21 Notice. ECF No. 145. Defendants have filed an opposition, ECF No. 146, and plaintiff has not 22 filed a reply within the allotted time. I recommend that the motion to strike be denied, and that 23 plaintiff be directed to file an opposition or statement of non-opposition to defendants’ motion 24 within thirty days. 25 The purpose of the Rand notice is to give a pro se prisoner litigant “fair notice” of the 26 requirements and consequences of the summary judgment rule because of the “complexity of 27 [that] rule combined with the lack of legal sophistication of the pro se prisoner.” Rand v. 28 Rowland, 154 F.3d 952, 960 (9th Cir. 1998). The notice must “apprise an unsophisticated 1 prisoner of his . . . rights and obligations under Rule 56”; inform the prisoner of his “right to file 2 counter-affidavits or other responsive evidentiary materials and be alerted to the fact that the 3 failure to do so might result in the entry of summary judgment against the prisoner”; and inform 4 the prisoner of “the effect of losing on summary judgment.” Id. (citations omitted). 5 Here, it is undisputed that plaintiff was not a prisoner at or near the time defendants filed 6 their motion.1 And the Court of Appeals has indicated that the Rand notice requirement does not 7 apply to non-prisoner litigants. See James v. Puga, 585 F. App’x 510, 511 (9th Cir. 2014) 8 (“However, Rand does not apply to this case because the record indicates that by the time the 9 defendants filed their summary judgment motions, James was no longer incarcerated.”) (citing 10 Jacobsen v. Riller, 790 F.2d 1362, 1364 (9th Cir. 1986)); Anderson v. Deleon, No. C 12-6055 SI 11 (PR), 2014 WL 3595020, at *4 (N.D. Cal. July 21, 2014) (“Due to his non-prisoner status at the 12 time the motion was filed, Anderson was not entitled to the Rand notice regarding summary 13 judgment because the Rand notice requirement has not been extended to non-prisoner pro se 14 litigants.”) (citing Rand, 154 F.3d at 960; Jacobsen, 790 F.2d at 1364-65 & n.4). In any event, 15 plaintiff has not filed an opposition to defendants’ motion and defendants have now provided him 16 with a Rand notice, see ECF No. 146 at 5. 17 I recommend that the deadline for plaintiff to file his opposition to defendants’ motion for 18 summary judgment be extended to thirty days after the issuance of any order adopting these 19 findings and recommendations and that plaintiff’s motion to strike be denied. 20 Accordingly, it is RECOMMENDED that plaintiff’s motion to strike, ECF No. 145, be 21 denied and plaintiff be directed to file an opposition or statement of non-opposition to defendants’ 22 motion for summary judgment within thirty days of any order adopting these findings and 23 recommendations. 24 These findings and recommendations are submitted to the United States District Judge

25 1 Plaintiff’s change of address, filed April 16, 2020, noted that he had been “accepted for release to residential home confinement . . . . [and he] will remain on home confinement until 26 October 15, 2020[,] at which time he will be supervised by the U.S. Probation Office . . . . .” ECF 27 No. 95. A review of the Federal Bureau of Prisons inmate locator confirms that plaintiff was released on October 15, 2020. https://www.bop.gov/inmateloc/ (last visited March 18, 2024). 28 Defendants filed their motion for summary judgment on December 7, 2023. ECF No. 143. 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 2 | after service of these findings and recommendations, any party may file written objections with 3 | the court and serve a copy on all parties. Such document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendations.” Any response shall be served and filed 5 | within fourteen days of service of the objections. The parties are advised that failure to file 6 | objections within the specified time may waive the right to appeal the District Court’s order. 7 | Turner vy. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 8 | 1991). 9 10 IT IS SO ORDERED. ll ( ie — Dated: _ March 19, 2024 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE

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