Thomas v. Smith

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HILBERT THOMAS, Case No. 23-cv-05617-JSC

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. PROCEED WITH FIRST AMENDED COMPLAINT 10 OAK SMITH, et al., Re: Dkt. No. 57 Defendants. 11

12 Plaintiff, a California prisoner proceeding without representation by an attorney, filed this 13 civil rights action under 42 U.S.C. § 1983. Defendants’ motion to dismiss Plaintiff’s First 14 Amended Complaint was granted, and Plaintiff was granted leave to file a Second Amended 15 Complaint. (ECF No. 56.) As Defendants’ motion did not seek dismissal of Plaintiff’s retaliation 16 claim, Plaintiff was advised that his failure to file a Second Amended Complaint “will result in the 17 First Amended Complaint being the operative complaint, and the case proceeding only with his 18 retaliation claim.” (Id. at 9:27-10:1.) Plaintiff has filed a motion to proceed with his First 19 Amended Complaint1 in which he indicates he does not intend to file a Second Amended 20 Complaint and instead wishes to proceed only with the retaliation claim in his First Amended 21 Complaint. (ECF No. 57.) 22 Good cause appearing, 23 1. Plaintiff’s motion to proceed only with the retaliation claim in his First Amended 24 Complaint is GRANTED. The other claims in the First Amended Complaint are DISMISSED 25 with prejudice. 26

27 1 The docket incorrectly labels this motion as a “Motion to Amend/Correct Order on Motion to 1 2. No later than July 14, 2025, Defendants shall file a motion for summary judgment 2 || on. The motion shall be supported by adequate factual documentation and shall conform in all 3 respects to Federal Rule of Civil Procedure 56 and shall include as exhibits all records and 4 || incident reports stemming from the events at issue. If Defendants are of the opinion that this case 5 cannot be resolved by summary judgment, they shall so inform the Court prior to the date the 6 summary judgment motion is due. All papers filed with the Court shall be promptly served on 7 Plaintiff. 8 At the time the dispositive motion is served, Defendants shall also serve, on a separate g || Paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) 10 (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). ll Plaintiff's opposition to the dispositive motion, if any, shall be filed with the Court and

2 served upon Defendants no later than August 11, 2025. Plaintiff must read the attached page E 3 headed “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 S 4 F.3d 952, 953-954 (9th Cir. 1998) (en banc). 3 15 Defendants shall file a reply brief no later than August 25, 2025. 16 The motion shall be deemed submitted as of the date the reply brief is due. No hearing 5 will be held on the motion unless the Court so orders at a later date. 5 ig 3. This order resolves docket number 57. IT IS SO ORDERED. Dated: April 17, 2025 20 21 , ne 22 agus SCOTT Hot 3 United States District Judge 24 25 26 27 28

1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly 9 supported by declarations (or other sworn testimony), you cannot simply rely on what your 10 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 11 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 12 shown in Defendant's declarations and documents and show that there is a genuine issue of 13 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 14 if appropriate, may be entered against you. If summary judgment is granted, your case will be 15 dismissed and there will be no trial. 16 17 18 19 20 21 22 23 24 25 26 27