(PC) Rood v. Lockwood

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA COLTON JAMES ROOD, No. 2:20-cv-0271 KJM AC P 12 Plaintiff, 13 v. ORDER ISAAC LOCKWOOD, et al., 15 Defendants.

17 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.

19 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. 24 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.

8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion to dismiss defendants’ motion for summary judgment (ECF No. 66) | is DENIED; and 11 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).

15 | DATED: December 8, 2022 * 16 thin Chane ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE