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Lawrence L. Marsh v. M. Vegianelli

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 2012

LAWRENCE L. MARSH, PLAINTIFF,
v.
M. VEGIANELLI, ET AL.,
DEFENDANTS.

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

ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW FIRST AMENDED OPPOSITION AND FILE SECOND AMENDED OPPOSITION IN LIGHT OF SEPARATELY ISSUED NOTICE (Doc. 68.) THIRTY-DAY DEADLINE ORDER VACATING MOTION TO DISMISS FROM COURT'S CALENDAR TO ALLOW TIME FOR AMENDMENT OF OPPOSITION AND REPLY (Doc. 56.)

I. BACKGROUND

Plaintiff Lawrence L. Marsh ("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 July 17, 2009. (Doc. 1.) This action now proceeds with the Third Amended Complaint filed on July 7, 2011, against defendants Cano, Lovell, Rohrandanz, and Morgan for failing to protect Plaintiff, in violation of the Eighth Amendment. (Doc. 45.)

On February 27, 2012, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 56.) On April 18, 2012, Plaintiff filed an opposition to the motion.

(Doc. 65.) On April 25, 2012, Defendants filed a reply to the opposition. (Doc. 66.) On April 30, 2012, Plaintiff filed a first amended opposition to the motion to dismiss. (Doc. 68.)

II. OPPORTUNITY FOR PLAINTIFF TO WITHDRAW AMENDED OPPOSITION AND FILE SECOND 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 first amended opposition filed on April 30, 2012, or (2) withdraw it and file a second 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 first amended opposition to Defendants' motion to dismiss and file a second amended opposition;

2. If Plaintiff does not file a second amended opposition in response to this order, his existing first amended opposition, filed on April 30, 2012, will be considered in resolving Defendants' motion to dismiss;

3. If Plaintiff elects to file a second amended opposition, Defendants' existing reply, filed on April 25, 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 a second amended opposition and amended reply.

IT IS SO ORDERED.

20120823

© 1992-2012 VersusLaw Inc.



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