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Kelly Morgan v. Tilton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 26, 2012

KELLY MORGAN,
PLAINTIFF,
v.
TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER OF CLARIFICATION (Resolves Doc. 64.) ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION WITHIN THIRTY DAYS, IF HE SO WISHES

Kelly Morgan ("Plaintiff") is a prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On July 10, 2012, the Court issued an order directing the Clerk to re-serve a copy of the Court's Second Informational Order upon Plaintiff. (Doc. 62.) On July 18, 2012, Plaintiff filed a request for clarification of the Court's July 10, 2012 order. (Doc. 64.)

Plaintiff expresses concern that the Court's order was sent to him because the Court did not receive Plaintiff's opposition to Defendant Hernandez' motion to dismiss of December 22, 2011. Plaintiff indicates that he has "already submitted the required motion to stop the dismissal of Plaintiff['s] petition" and "can not do this again." (Doc. 64 at 4.)

Plaintiff is advised that the Court received and filed his opposition to Defendant Hernandez' motion to dismiss on April 18, 2012. (Docs. 60, 61.) The Court's July 10, 2012 order was not meant to raise doubts about whether Plaintiff's opposition had been received and filed by the Court.

The Court re-served the Second Informational Order upon Plaintiff on July 10, 2012 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), which requires Plaintiff to 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 three months prior does not suffice.*fn1

Plaintiff is not required to file a further opposition to Defendant Hernandez' motion to dismiss. However, in the event that Plaintiff wishes to file an amended opposition, he shall be granted thirty days in which to do so. The Court will not consider multiple oppositions, however, and Plaintiff has two options upon receipt of this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw it and file an amended opposition.

Accordingly, it is HEREBY ORDERED that:

1. By this order, Plaintiff's request for clarification, filed on July 18, 2012, is GRANTED;

2. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition and file an amended opposition;

3. If Plaintiff does not file an amended opposition in response to this order, his existing opposition will be considered in resolving Defendant's motion to dismiss; and

4. If Plaintiff elects to file an amended opposition, Defendant may file a reply pursuant to Local Rule 230(l).

IT IS SO ORDERED.


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