ORDER PROVIDING NOTICE TO PARTIES OF COURT'S INTENTION TO GRANT SUMMARY JUDGMENT IN DEFENDANT'S FAVOR AND PROVIDING OPPORTUNITY TO BE HEARD

JOHN A. MENDEZ, District Judge.

The Court issues the following order to provide Plaintiff Darrell Williams ("Plaintiff") reasonable notice of its intention to grant summary judgment sua sponte in Defendant Kevin Brown's ("Defendant") favor.

"District courts unquestionably possess the power to enter summary judgment sua sponte, even on the eve of trial." Norse v. City of Santa Cruz, 629 F.3d 966, 971 (9th Cir. 2010). However, "`[s]ua sponte grants of summary judgment are only appropriate if the losing party has reasonable notice that the sufficiency of his or her claim will be in issue.'" Id. at 971-72 (quoting United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008)). "`Notice need not be explicit. . . . A party is "fairly appraised" that the court will in fact be deciding a summary judgement [sic] motion if that party submits matters outside the pleadings to the judge and invites consideration of them.'" United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d at 955 (quoting In re Rothery, 143 F.3d 546, 549 (9th Cir. 1998)).

Here, Plaintiff filed a motion for summary judgment (Doc. #32). Magistrate Judge Dale A. Drozd considered the motion on its merits and recommended the Court deny it (Doc. #34). After considering Plaintiff's objections, the Court adopted the findings and recommendations in full (Doc. #37). After reviewing the record and Magistrate Judge Drozd's findings and recommendations in preparation for the upcoming trial, the Court is now inclined to grant summary judgment sua sponte in Defendant's favor.

Magistrate Judge Drozd found that Plaintiff failed to meet the standard for summary judgment in his favor, considering the evidence in the light most favorable to Defendant. However, he went further and found "the evidence presented by plaintiff fail[ed] to demonstrate that defendant Brown responded to plaintiff's serious medical needs with deliberate indifference." F&R at p. 8 (emphasis added). Magistrate Judge Drozd concluded that "based on plaintiff's evidence, defendant Brown's alleged misconduct on this one occasion cannot be said to amount to a failing of constitutional magnitude as a matter of law." Id. (emphasis added). The Court agrees with this conclusion and now notifies the parties of its intent to grant judgment in Defendant's favor.

Although the Court finds Plaintiff has already received "`reasonable notice that the sufficiency of his [] claim will be in issue,'" the parties are hereby notified that the Court will provide an additional opportunity for them to be heard on the matter on the first day of trial, August 3, 2015. See Norse, 629 F.3d at 971-72.

IT IS SO ORDERED.