UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 23, 2012
DIAZ, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER STRIKING PLAINTIFF'S SURREPLY AND SUPPLEMENTAL OPPOSITION (Doc. 45, 48.)
ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY ISSUED NOTICE (Doc. 43.)
ORDER VACATING MOTION TO DISMISS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY (Doc. 41.)
Plaintiff Alan DeVon ("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 November 29, 2007. (Doc. 1.) This action now proceeds with the Fifth Amended Complaint filed on April 25, 2011, against defendants Lieutenant T. Atkins and Nurse Carlson, for inadequate medical care in violation of the Eighth Amendment. (Doc. 31.)
On October 18, 2011, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 41.) On April 12, 2012, Plaintiff filed an opposition to the motion. (Doc. 43.) On April 19, 2012, Defendants filed a reply to the opposition. (Doc. 44.) On May 1, 2012, Plaintiff filed a surreply. (Doc. 45.) On July 26, 2012, Plaintiff filed a supplemental opposition to the motion to dismiss. (Doc. 48.)
II. PLAINTIFF'S SURREPLY AND SUPPLEMENTAL OPPOSITION
Plaintiff filed a surreply on May 1, 2012 titled "Opposition to Defendants to Dismiss Plaintiff's Fifth Amended Complaint Filed April 25, 2011 With the Defendants 4/19/12 Reply." (Doc. 45.) The Local Rules provide for a motion, an opposition, and a reply. Neither the Local Rules nor the Federal Rules provide the right to file a surreply, and the Court neither requested one nor granted a request on the behalf of Plaintiff to file one. Accordingly, Plaintiff's surreply shall be stricken from the record as an unauthorized pleading.
Plaintiff also filed a supplemental opposition to Defendants' motion to dismiss on July 26, 2012, titled "Exparte Review/opposing Defendants Summary Judgment Notice and Motion to Dismiss." (Doc. 48.) Plaintiff's supplemental opposition shall also be stricken as an unauthorized pleading. The Court will not consider multiple oppositions. However, Plaintiff shall be granted an opportunity to file an amended opposition, if he so wishes.
III. OPPORTUNITY FOR PLAINTIFF TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION, IF HE SO WISHES In light of the recent decision in Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012), 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, and the notice given in this case some two years prior does not suffice. 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 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 April 12, 2012 or (2) withdraw it and file an amended opposition.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's surreply filed on May 1, 2012 and Plaintiff's supplemental opposition filed on July 26, 2012 are STRICKEN from the record as unauthorized pleadings;
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 April 12, 2012, will be considered in resolving Defendants' motion to dismiss;
4. If Plaintiff elects to file an amended opposition, Defendants' existing reply, filed on April 19, 2012, 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.
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