(PC) Rood v. Lockwood

Opinion

COLTON JAMES ROOD, No. 2:20-cv-0271 KJM AC P Plaintiff, v. ORDER ISAAC LOCKWOOD, et al., Defendants. Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983, has filed a motion to dismiss defendants’ motion for summary judgment. ECF No. 66. He requests that the motion for summary judgment be denied because defendants failed to serve him with a Rand Notice for nearly two years. Id. at 2. He further asserts that defendants failed to comply with the court’s November 23, 2022 order, which required defendants serve plaintiff with a Rand Notice within twenty-four hours, because he did not receive the notice until November 28, 2022. Id. Defendants were not required to serve plaintiff with a Rand Notice until they filed a motion for summary judgment. See ECF No. 25 at 4, ¶ 11 (citing Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)). When they failed to serve plaintiff with a Rand Notice at the same time they served their motion for summary judgment, they were ordered to do so within twenty-four hours. ECF No. 64. Defendants proceeded to file a Rand Notice with a certificate of service indicating that they served the notice on November 23, 2022 (ECF No. 65 at 5), and counsel has since filed a declaration that avers the same (ECF No. 67). It therefore appears that defendants complied with the November 23, 2022 order. The relevant date is that on which defendants served the notice, not the date on which it was received by plaintiff. Plaintiff's motion to dismiss the motion for summary judgment will therefore be denied and plaintiff will be given an opportunity to file an opposition addressing the merits of the motion. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's motion to dismiss defendants’ motion for summary judgment (ECF No. 66) is DENIED; and 2. Within twenty-one days after the filing date of this order, plaintiff shall file and serve an opposition to the motion for summary judgment or a statement of non-opposition. Failure to comply with this order will result in a recommendation that this action be dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). DATED: December 8, 2022 * thin Chane ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE