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Bernard C. Hughes v. City of Mariposa

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 2012

BERNARD C. HUGHES,
PLAINTIFF,
v.
CITY OF MARIPOSA, ET AL.,
DEFENDANTS.

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

ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF SEPARATELY ISSUED NOTICE (Doc. 55.) THIRTY-DAY DEADLINE

ORDER VACATING MOTION TO DISMISS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY (Doc. 53.)

I. BACKGROUND

Plaintiff Bernard C. Hughes ("Plaintiff") is a prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 29, 2009. (Doc. 1.) This action now proceeds with the Third Amended Complaint filed on November 28, 2011, against defendants Brent, Bruner, and Beverage for deprivation of outdoor exercise in violation of the Eighth Amendment. (Doc. 49.)

On February 24, 2012, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 53.) On March 19, 2012, Plaintiff filed an opposition to the motion. (Doc. 55.) On March 23, 2012, Defendants filed a reply to the opposition. (Doc. 56.)

II. 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 December 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 March 19, 2012 or (2) withdraw it and file an amended opposition.

III. CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that:

1. 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;

2. If Plaintiff does not file an amended opposition in response to this order, his existing opposition, filed on March 19, 2012, will be considered in resolving Defendants' motion to dismiss;

3. If Plaintiff elects to file an amended opposition, Defendants' existing reply, filed on March 23, 2012, will not be considered and they may file an amended reply pursuant to Local Rule 230(l); and

4. 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.

20120823

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