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Jaques Fearence v. L. L. Shulteis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 2012

JAQUES FEARENCE,
PLAINTIFF,
v.
L. L. SHULTEIS, ET AL., DEFENDANTS.

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

ORDER STRIKING PLAINTIFF'S SURREPLY (Doc. 27.) ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY ISSUED NOTICE (Doc. 25.) THIRTY-DAY DEADLINE

ORDER VACATING MOTION TO DISMISS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY (Doc. 22.)

I. BACKGROUND

Plaintiff Jaques Fearence ("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 May 1, 2008. (Doc. 1.) This action now proceeds with the First Amended Complaint filed on March 1, 2010, against defendants Hopkins, Busby, Davis, and Duffy, for use of excessive force in violation of the Eighth Amendment.*fn1 (Doc. 10.)

On December 16, 2011, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 22.) On February 15, 2012, Plaintiff filed an opposition to the motion. (Doc. 25.) On February 22, 2012, Defendants filed a reply to the opposition. (Doc. 26.) On March 8, 2012, Plaintiff filed a surreply. (Doc. 27.)

II. PLAINTIFF'S SURREPLY

Plaintiff filed a surreply on March 8, 2012 titled "Plaintiff's Opposition to Reply in Support of Defendants' Motion to Dismiss." (Doc. 27.) 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.

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 in September 2011 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 February 15, 2012 or (2) withdraw it and file an amended opposition.

IV. CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's surreply filed on March 8, 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 February 15, 2012, will be considered in resolving Defendants' motion to dismiss;

4. If Plaintiff elects to file an amended opposition, Defendants' existing reply, filed on February 22, 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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