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Emelito Exmundo v. Vella

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 18, 2012

EMELITO EXMUNDO,
PLAINTIFF,
v.
VELLA, ET AL.,
DEFENDANTS.

ORDER PROVIDING PLAINTIFF OPTION TO (1) STAND ON EXISTING OPPOSITION OR (2) FILE AMENDED OPPOSITION PER SEPARATELY-ISSUED AMENDED SECOND INFORMATIONAL ORDER AND NOTICE Doc. 35 TWENTY-ONE DAY DEADLINE

I. Procedural History

On June 15, 2007, Plaintiff Emelito Exmundo ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action in California Superior Court, County of Kings, pursuant to 42 U.S.C. § 1983. Doc. 1. On November 21, 2007, Defendant removed this action to Federal Court. Id. On April 1, 2008, the Court issued a second informational order, advising Plaintiff that Defendant may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 9. On September 21, 2011, Defendant filed a motion to dismiss, for failure to exhaust administrative remedies. Doc. 32. On November 18, 2011, Plaintiff filed an opposition to Defendant's motion to dismiss. Doc. 35. On February 13, 2012, the Court issued Findings and Recommendations, recommending granting the remaining Defendant's motion to dismiss, for failure to exhaust administrative remedies. Doc. 36. On April 20, 2012, Plaintiff filed Objections, and on April 30, 2012, Plaintiff filed further Objections. Docs. 39, 40.

II. Woods v. Carey and Contemporaneous Notice

On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for opposing a defendant's motion to dismiss should be issued contemporaneously when a defendant files a motion to dismiss, as opposed to a year or more in advance. Woods v. Carey, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012). On April 1, 2008, this Court issued a second informational order, containing the notice and warning of requirements for opposing a defendant's motion to dismiss to Plaintiff. Doc. 9. On September 21, 2011, Defendant filed a motion to dismiss. Doc. 32. In order to address the time delay between providing notice and the filing of defendant's motion, the Court issued an amended second informational order to Plaintiff, in accordance with Woods. The Court notified Plaintiff of the rights and requirements for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Woods and Wyatt, 315 F.3d at 1108.

III. Order Providing Plaintiff Option to (1) Stand on Existing Opposition or (2) File Amended Opposition Per Amended Second Informational Order and Notice In light of the separately-issued amended second informational order and notice pursuant to

Woods, the Court will provide Plaintiff with two options upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw the existing opposition and file an amended opposition.

Accordingly, it is HEREBY ORDERED that:

1. Within twenty-one (21) days from the date of service of this order, Plaintiff may elect to:

a. Stand on his existing opposition already submitted to the Court; or

b. Withdraw his opposition and file an amended opposition;

2. If Plaintiff does not elect to file an amended opposition in response to this order within twenty-one (21) days, the Court will consider his existing opposition in resolving Defendant's motion to dismiss;

3. If Plaintiff elects to file an amended opposition, the Court will not consider Defendant's existing reply; and

4. Defendant may file an amended reply pursuant to Local Rule 230(l).

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20120718

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