(PC) Plunkett v. Parham ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES PLUNKETT, No. 2:19-cv-1450 KJM AC P 12 Plaintiff, 13 v. ORDER 14 C. PARHAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. On October 17, 2022, defendants filed a motion for summary judgment. ECF 19 No. 46. However, upon further review it does not appear that they contemporaneously served 20 plaintiff with a Rand Notice, as required by this court. See ECF No. 31 at 6, ¶ 11 (warning that 21 failure to contemporaneously serve plaintiff with a Rand Notice may constitute grounds for 22 dismissal (citing Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 23 952, 957 (9th Cir. 1998))). 24 The Ninth Circuit has stressed the importance of pro se prisoners receiving a Rand Notice 25 at the same time as the motion for summary judgment, and failure to provide contemporaneous 26 notice is grounds for reversal. Woods, 684 F.3d at 939-41. Given the lapse in time since the 27 summary judgment motion was filed, it will be denied without prejudice to a properly filed 28 motion that is accompanied by a Rand Notice. Should defendants choose to re-file their motion 1 | for summary judgment, they should ensure that they attach the properly signed versions of their 2 || declarations. See ECF No. 47. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Defendants’ motion for summary judgment (ECF No. 46) is DENIED without 5 || prejudice as procedurally defective; 6 2. Within seven days of the filing of this order, defendants may re-serve and re-file their 7 || motion for summary judgment. The motion must be accompanied by a Rand Notice and the 8 | Notice must be in a document separate from the motion. 9 || DATED: June 13, 2023 . 10 Ctlhter— Lane 11 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28