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Thomas D. Braley v. Wasco State Prison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 12, 2012

THOMAS D. BRALEY,
PLAINTIFF,
v.
WASCO STATE PRISON, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER PERMITTING PLAINTIFF OPPORTUNITY TO FILE SUPPLEMENTAL OPPOSITION IN LIGHT OF SEPARATELY-ISSUED MOTION TO DISMISS NOTICE (ECF No. 78) THIRTY DAY DEADLINE

Plaintiff Thomas D. Braley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Markmann and Miller for failure to protect in violation of the Eighth Amendment.

On December 15, 2011, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. Plaintiff filed an opposition on February 6, 2012, Defendants filed a reply on February 13, 2012, and the motion was submitted under Local Rule 230(l). On April 16, 2012, findings and recommendations issued recommending granting Defendants' motion to dismiss.

In light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 2626912, at *5 (9th Cir. Jul. 6, 2012), Plaintiff must be provided with "fair notice" of the requirements for opposing a motion for failure to exhaust administrative remedies at the time the motion is brought and the notice given in this case two months prior does not suffice. Id.

By separate order issued concurrently with this order, the Court provided the requisite notice.

Plaintiff shall be granted an opportunity to file a supplemental opposition to the motion to dismiss.*fn1

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff may, within thirty (30) days from the date of service of this order, file a supplemental opposition;

2. If Plaintiff does not file a supplemental opposition in response to this order, his existing opposition will be considered in resolving Defendants' motion for summary judgment; and

3. If Plaintiff elects to file a supplemental opposition, Defendants' may file a supplemental reply pursuant to Local Rule 230(l).

IT IS SO ORDERED.


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