(PC) Rood v. Lockwood ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, No. 2:20-cv-0271 KJM AC P 12 Plaintiff, 13 v. ORDER 14 ISAAC LOCKWOOD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a motion to dismiss defendants’ motion for summary judgment. ECF No. 66. 19 He requests that the motion for summary judgment be denied because defendants failed to serve 20 him with a Rand Notice for nearly two years. Id. at 2. He further asserts that defendants failed to 21 comply with the court’s November 23, 2022 order, which required defendants serve plaintiff with 22 a Rand Notice within twenty-four hours, because he did not receive the notice until November 28, 23 2022. Id. 24 Defendants were not required to serve plaintiff with a Rand Notice until they filed a 25 motion for summary judgment. See ECF No. 25 at 4, ¶ 11 (citing Woods v. Carey, 684 F.3d 934, 26 935 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)). When they failed to 27 serve plaintiff with a Rand Notice at the same time they served their motion for summary 28 judgment, they were ordered to do so within twenty-four hours. ECF No. 64. Defendants 1 | proceeded to file a Rand Notice with a certificate of service indicating that they served the notice 2 || on November 23, 2022 (ECF No. 65 at 5), and counsel has since filed a declaration that avers the 3 || same (ECF No. 67). It therefore appears that defendants complied with the November 23, 2022 4 | order. The relevant date is that on which defendants served the notice, not the date on which it 5 || was received by plaintiff. Plaintiff's motion to dismiss the motion for summary judgment will 6 || therefore be denied and plaintiff will be given an opportunity to file an opposition addressing the 7 || merits of the motion. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion to dismiss defendants’ motion for summary judgment (ECF No. 66) 10 | is DENIED; and 11 2. Within twenty-one days after the filing date of this order, plaintiff shall file and serve 12 || an opposition to the motion for summary judgment or a statement of non-opposition. Failure to 13 || comply with this order will result in a recommendation that this action be dismissed without 14 || prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 15 | DATED: December 8, 2022 * 16 thin Chane ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28