ORDER PROVIDING PLAINTIFF OPTION TO (1) STAND ON EXISTING OPPOSITION TO MOTION TO DISMISS OR (2) FILE AMENDED OPPOSITION PER AMENDED SECOND INFORMATIONAL ORDER Docs. 17, 18 TWENTY-ONE DAY DEADLINE
Plaintiff Kiiliu Washington ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 6, 2012, 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. 16-1. On May 9, 2012, Defendant filed a motion to dismiss. Doc. 17. On June 11, 2012, Plaintiff filed an opposition to Defendant's motion to dismiss. Doc. 18. On June 13, 2012, Defendant filed a reply to Plaintiff's opposition. Doc. 19.
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. Woods v. Carey, 2012 WL 2626912, at * 4 (9th Cir. Jul. 6, 2012).
III. Order Providing Plaintiff Option to (1) Stand on Existing Opposition to Motion to Dismiss or (2) File Amended Opposition Per Amended Second Informational Order 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 ...