UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 18, 2012
LUIS ROBERTO MARTINEZ, PLAINTIFF,
KINGS COUNTY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER PROVIDING PLAINTIFF
OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF
THIRTY DAY DEADLINE
Plaintiff Luis Roberto Martinez 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 Tami Arden, P. Pascua, R. Martinez, V. Ignacio, P. Linihan, and K. Englert.
On February 13, 2012, Defendants filed a motion to dismiss in part for failure to exhaust administrative remedies. Plaintiff filed an opposition on March 6, 2012, Defendants filed a reply on March 13, 2012, and the motion was submitted under Local Rule 230(l).
However, 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 to dismiss for failure to exhaust administrative remedies at the time the motion is brought and the notice given in this case some months prior does not suffice.
By separate order issued concurrently with this order, the Court provided the requisite notice. The Court will not consider two oppositions, however, and Plaintiff has two options upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw it and file an amended opposition.*fn1
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition and file an amended opposition;
2. If Plaintiff does not file an amended opposition in response to this order, his existing opposition will be considered in resolving Defendants' motion to dismiss for failure to exhaust administrative remedies; and
3. If Plaintiff elects to file an amended opposition, Defendants' existing reply will not be considered and they may file an amended reply pursuant to Local Rule 230(l).
IT IS SO ORDERED.