UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 23, 2012
RAHN G. THOMPSON,
STATE OF CALIFORNIA, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER STRIKING PLAINTIFF'S SUPPLEMENTAL OPPOSITION (Doc. 72.) ORDER OF CLARIFICATION, PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY ISSUED NOTICE (Doc. 61.) THIRTY-DAY DEADLINE ORDER VACATING MOTION TO DISMISS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY / (Doc. 52.)
Plaintiff Rahn G. Thompson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2007. (Doc. 1.) This action now proceeds with the Second Amended Complaint filed on November 10, 2009, against defendant Tucker for subjecting Plaintiff to adverse conditions of confinement; against defendants Tucker, Green, Lee, Rincon, Hernandez, Deathridge, and Huckabay for failing to protect Plaintiff; against defendants Tucker, Green, and Huckabay for retaliating against Plaintiff; and against defendants Tucker, Thompson, and Melendez for using excessive force against Plaintiff. (Doc. 25.)
On September 27, 2011, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies and for failure to state a claim for retaliation. (Doc. 52.) Plaintiff filed an opposition on November 21, 2011. (Doc. 61.) On December 6, 2011, Defendants filed (1) a reply to the opposition and (2) objections to Plaintiff's evidence submitted in support of his opposition. (Docs. 66, 67.) On February 1, 2012, Plaintiff filed (1) a response to Defendants' objections and (2) a supplemental opposition to the motion to dismiss. (Docs. 71, 72.)
On July 10, 2012, the Court directed the Clerk to re-serve the Second Informational Order upon Plaintiff. (Doc. 75.) On July 27, 2012, Plaintiff responded to the re-served Second Informational Order, requesting clarification from the Court. (Doc. 76.)
II. PLAINTIFF'S SUPPLEMENTAL OPPOSITION
Plaintiff has submitted an opposition and a supplemental opposition to Defendants' motion to dismiss. The Court will not consider multiple oppositions. Therefore, Plaintiff's supplemental opposition shall be stricken as an unauthorized pleading. Plaintiff shall be granted an opportunity to file an amended opposition, if he so wishes.
III. ORDER OF CLARIFICATION
Plaintiff requests clarification of the Court's decision to re-serve the Second Informational Order. Plaintiff explains that he sent the Court his opposition to Defendants' motion to dismiss and is now uncertain whether he is expected to file other documents.
The Court re-served the Second Informational Order upon Plaintiff in light of the recent decision in Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). In Woods, the Ninth Circuit held that Plaintiff must be provided with "fair notice" of the requirements for opposing a motion to dismiss for failure to exhaust remedies at the time the motion is brought. The notice given in this case more than a year ago does not suffice.
Plaintiff is not required to file other documents in opposition to the motion to dismiss. However, in light of Woods, Plaintiff shall be permitted the opportunity to file an amended opposition, if he so wishes.
By separate order entitled "Amended Second Informational Order - Notice and Warning of Requirements for Opposing Defendants' Motion to Dismiss," issued concurrently with this order, the Court has again provided the requisite notice. The Court will not consider multiple 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 filed on November 21, 2011 or (2) withdraw it and file an amended opposition.*fn1
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's supplemental opposition filed on February 1, 2012, is STRICKEN from the record as an unauthorized pleading;
2. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition to Defendants' motion to dismiss and file an amended opposition;
3. If Plaintiff does not file an amended opposition in response to this order, his existing opposition, filed on November 21, 2011, will be considered in resolving Defendants' motion to dismiss;
4. If Plaintiff elects to file an amended opposition, Defendants' existing reply, filed on December 6, 2011, will not be considered and they may file an amended reply pursuant to Local Rule 230(l); and
5. In light of 28 U.S.C. § 476(a)(1), the Civil Justice Reform Act, Defendants' motion to dismiss is HEREBY DEEMED VACATED from the Court's calendar to allow time for the filing of an amended opposition and amended reply.
IT IS SO ORDERED.