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. 25 TWENTY-ONE DAY DEADLINE
On July 6, 2010, Plaintiff Christian Williams ("Plaintiff"), a federal prisoner proceeding pro se and in forma pauperis, filed a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1.
On June 16, 2011, Plaintiff filed a second amended complaint, naming Defendants Hector
A. Rios, Jacqueline Ciufo, Jessie Gonzalez, S. Putnam, Z. Morgan, and D. S. Eber ("Defendants"), who were employed at USP Atwater. 2d Am. Compl. at 3, Doc. 14. On July 14, 2011, the Court found two (2) cognizable Fifth Amendment due process claims against Defendants for (1) failure to provide notice of his SMU placement hearing and for (2) failure to provide periodic review hearings while in administrative segregation. Doc. 15.
On October 11, 2011, the Court issued a second informational order, advising Plaintiff that Defendants 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 Woods v. Carey, --- F.3d ---, 2012 WL 2626912 (9th Cir. July 6, 2012) and 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. 23. On November 22, 2011, Defendants filed a Motion to Dismiss Plaintiff's Second Due Process Claim, for failure to exhaust administrative remedies. Doc. 24. On December 9, 2011, Plaintiff filed an Opposition to Defendants' motion to dismiss. Doc. 25. On December 16, 2011, Defendants filed a Reply. Doc. 28. On April 17, 2012, the Court issued Findings and Recommendations, recommending granting the Defendants' motion to dismiss Plaintiff's second due process claim, for failure to exhaust administrative remedies. Doc. 29. Plaintiff did not file objections.
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). October 11, 2011, 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. 23. On November 22, 2011, Defendants filed a motion to dismiss. Doc. 24. Although there was only approximately a one (1) month delay between providing notice and the filing of Defendants' motion, the Court will issue this amended second informational order to Plaintiff, in accordance with Woods.
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 ...