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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. 2:04-cv-00776 LKK EFB

vs.

D.L. RUNNELS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

U.S.C. § 1983. On October 21, 2010, this court adopted recommendations of the magistrate

judge addressing numerous issues in the case. Dckt. Nos. 177, 190. Of relevance here, the court

ordered dismissal of certain of plaintiff’s claims for failure to exhaust administrative remedies

and granted summary judgment in favor of defendants on other claims.1

 Id. However, in light of

1

The court dismissed plaintiff’s claims against defendants Pribble, Wilbur, Kelsey,

Briddle, St. Andre, Weaver, Gower, Bates, Brown, and Arnold for failure to exhaust

administrative remedies. The court further dismissed plaintiff’s claims alleging: (1) that

defendant Von Rader subjected him to excessive force on December 31, 2002, (2) that defendant

Houghland punched, grabbed, and slammed plaintiff against a wall on December 31, 2002, and

(3) that defendant Chapman was a bystander who failed to intervene as other defendants

punched, grabbed, and slammed plaintiff into a wall on December 31, 2002 for failure to exhaust

administrative remedies. The court summarily adjudicated in favor of defendants plaintiff’s

claims: (1) that defendants Bigford, Martinez, Little, and Doyle deprived plaintiff of warm food,

yard exercise, phone calls, paper, pen, request slips, complaint forms, and medical care between

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recent Ninth Circuit case authority and to ensure that plaintiff has “fair, timely and adequate

notice” of what is required of him to oppose defendants’ motion to dismiss for failure to exhaust

and for summary judgment, the court must vacate the portions of the October 21, 2010 order

dismissing claims for failure to exhaust and granting summary adjudication of other claims in

favor of defendants, because no concurrent notice was provided to plaintiff with the motion. 

See Dckt. Nos. 146, 170; Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012) (“The only

satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand and Wyatt

is to provide such notice at the time that the relevant motions are filed.” (emphasis added));

Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state that the

court has required that it be given and that it be set forth in a separate document that is served

with the moving papers). Defendants may refile their motion to dismiss for failure to exhaust

and for summary judgment and concurrently serve plaintiff with notice of the requirements for

opposing a motion to dismiss for failure to exhaust and for summary judgment. 

Accordingly, IT IS HEREBY ORDERED that:

1. The October 21, 2010 order (Dckt. No. 190) is vacated to the extent it granted

defendants’ requests for dismissal of claims as unexhausted or summary adjudication of claims;

2. Defendants’ motion to dismiss claims for failure to exhaust and for summary

judgment (Dckt. Nos. 146, 170) is denied without prejudice.

3. Within thirty days of the date of this order, defendants may re-file and re-serve their

motion to dismiss for failure to exhaust and for summary judgment. Defendants must

contemporaneously serve with the motion, but in a separate document, a copy of the attached

“Rand Notice” and “Wyatt Notice,” which provide plaintiff with notice of the requirements for

opposing the motion. Failure to do so may constitute grounds for denial of the motion.

December 31, 2002 and (2) for compensatory damages against defendants Bigford, Martinez,

Little, and Doyle. Dckt. No. 177 at 31-32; Dckt. No. 190.

2

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4. If defendants re-serve their motion, plaintiff may thereafter file and serve an amended

opposition within thirty days. If plaintiff fails to file an amended opposition, the court will

consider his existing opposition in resolving defendants’ motion.

5. If plaintiff files an amended opposition, defendants may thereafter file an amended

reply within fourteen days.

DATED: February 15, 2013.

IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. 2:04-cv-00776 LKK EFB

vs.

D.L. RUNNELS, et al.,

Defendants. RAND NOTICE**

 /

The court requires that you be provided with this notice regarding the requirements for

opposing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

When a defendant moves for summary judgment, the defendant is requesting that the

court grant judgment in defendant’s favor without a trial. If there is no real dispute about any

fact that would affect the result of your case, the defendant who asked for summary judgment is

entitled to judgment as a matter of law, which will end your case against that defendant. A

motion for summary judgment will set forth the facts that the defendant asserts are not

reasonably subject to dispute and that entitle the defendant to judgment. 

To oppose a motion for summary judgment, you must show proof of your claims. To do

this, you may refer to specific statements made in your complaint if you signed your complaint

under penalty of perjury and if your complaint shows that you have personal knowledge of the

matters stated. You may also submit declarations setting forth the facts that you believe prove

your claims, as long as the person who signs the declaration has personal knowledge of the facts

stated. You may also submit all or part of deposition transcripts, answers to interrogatories,

admissions, and other authenticated documents. For each of the facts listed in the defendant’s

Statement of Undisputed Facts, you must admit the facts that are undisputed, and deny the facts

that are disputed. If you deny a fact, you must cite to the proof that you rely on to support your

denial. See L.R. 260(b). If you fail to contradict the defendant’s evidence with your own

evidence, the court may accept the defendant’s evidence as the truth and grant the motion. The

court will consider a request to postpone consideration of the defendant’s motion if you submit a

declaration showing that for a specific reason you cannot present such facts in your opposition. 

If you do not respond to the motion, the court may consider your failure to act as a waiver of

your opposition. See L.R. 230(l). 

If the court grants the defendant’s motion, whether opposed or unopposed, judgment will

be entered for that defendant without a trial and the case will be closed as to that defendant.

** This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely

and adequate notice of what is required” to oppose a motion for summary judgment. See Woods

v. Carey, __ F.3d __, Nos. 09-15548, 09-16113, 2012 U.S. App. LEXIS 13779, at *1 (9th Cir.

July 6, 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. 2:04-cv-00776 LKK EFB

vs.

D.L. RUNNELS, et al.,

Defendants. WYATT NOTICE***

 /

The court requires that you be provided with this notice regarding the requirements for

opposing a motion to dismiss for failure to exhaust administrative remedies. 

When a defendant moves to dismiss some or all of your claims for failure to exhaust

administrative remedies, the defendant is requesting that the court dismiss claims for which you

did not exhaust available administrative remedies. The defendant may submit affidavits or

declarations under penalty of perjury and admissible documents in support of the motion. 

To oppose the motion, you may submit proof of specific facts regarding the exhaustion of

administrative remedies. To do this, you may refer to specific statements made in your complaint

if you signed your complaint under penalty of perjury and if your complaint shows that you have

personal knowledge of the matters stated. You may also submit declarations setting forth facts

regarding exhaustion of your claims, as long as the person who signs the declaration has personal

knowledge of the facts stated. You may also submit all or part of deposition transcripts, answers

to interrogatories, admissions, and other authenticated documents. If you fail to contradict the

defendant’s evidence with your own evidence, the court may accept the defendant’s evidence as

the truth and grant the motion. If you do not respond to the motion, the court may consider your

failure to act as a waiver of your opposition. See L.R. 230(l). 

If the court grants the defendant’s motion, whether opposed or unopposed, your

unexhausted claims will be dismissed. If all of your claims are unexhausted, your entire case

will be over. If, however, you exhaust administrative remedies for your claims at a later date,

you may raise those claims in a new action.

*** This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely

and adequate notice of what is required” to oppose a motion to dismiss for failure to exhaust

administrative remedies. See Woods v. Carey, __ F.3d __, Nos. 09-15548, 09-16113, 2012 U.S.

App. LEXIS 13779, at *1 (9th Cir. July 6, 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120

n.15 (9th Cir. Cal. 2003). 

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