Jones et al v. California Department of Corrections et al

Filing 71

ORDER Providing Plaintiff Option to (1) Stand on Existing Opposition to Motion to Dismiss or (2) File Amended Opposition per Amended Second Informational Order, signed by Magistrate Judge Gerald B. Cohn on 7/18/12. 21-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARK JONES,

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Plaintiff,

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v.

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CASE NO. 1:08-cv-00069-LJO-GBC (PC)

C A LIF O R N IA D E P A R T M E N T
CORRECTIONS, et al.,

ORDER PROVIDING PLAINTIFF OPTION TO
(1) STAND ON EXISTING OPPOSITION TO
MOTION TO DISMISS OR (2) FILE
AMENDED OPPOSITION PER AMENDED
O F SECOND INFORMATIONAL ORDER

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Docs. 56, 58
Defendants.

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TWENTY-ONE DAY DEADLINE
/

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I. Procedural History

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On January 14, 2008, Plaintiff Mark Jones (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action jointly with his wife, Christine Jones, pursuant to 42

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U.S.C. § 1983. Doc. 1. On January 31, 2011, the Court severed the case and ordered Plaintiff’s wife,

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Christine Jones, to file a separate action. Doc. 38.1 In Plaintiff’s fifth amended complaint, Plaintiff

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states that Defendant Couch searched and detained his wife and threatened her that Plaintiff would

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be sent back to the Security Housing Unit if she told Plaintiff about the harassment and he filed an

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inmate grievance. Pl. 5th Am. Compl. at 9, Doc. 39. On May 13, 2011, the Court adopted findings

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and recommendations and ordered the case to proceed on a cognizable First Amendment retaliation

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On April 22, 2011, the Court dismissed the separate action filed by Plaintiff’s wife, for failure to state a
claim. Jones v. California Department of Corrections, No. 1:08-cv-01383-LJO-GBC, aff’d, No. 11-16245 (9th Cir.
May 25, 2012).
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claim against Defendant Couch. Doc. 44. On June 6, 2011, the Court issued a second informational

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order, advising Plaintiff that Defendant may file an unenumerated 12(b) motion to dismiss for failure

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to exhaust administrative remedies and how Plaintiff must oppose the motion in order to avoid

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dismissal, pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int’l

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Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc.

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47. On December 16, 2011, Defendant filed a motion to dismiss for failure to exhaust administrative

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remedies. Doc. 56. On January 10, 2012, Plaintiff filed an opposition to Defendant’s motion to

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dismiss. Doc. 58. On January 18, 2012, Defendant filed a reply to Plaintiff’s opposition. Doc. 59.

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On July 12, 2012, the Court issued Findings and Recommendations, recommending granting the

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Defendant’s motion to dismiss, for failure to exhaust administrative remedies. Doc. 69.

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II. Woods v. Carey and Contemporaneous Notice

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On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for

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opposing a defendant’s motion to dismiss should be issued contemporaneously when a defendant

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files a motion to dismiss, as opposed to a year or more in advance. Woods v. Carey, 2012 WL

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2626912, at * 4 (9th Cir. Jul. 6, 2012). On June 6, 2011, this Court issued a second informational

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order, containing the notice and warning of requirements for opposing a defendant’s motion to

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dismiss to Plaintiff. Doc. 47. On December 16, 2011, Defendant filed a motion to dismiss. Doc. 56.

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In order to address the time delay between providing notice and the filing of Defendant’s motion,

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the Court issued an amended second informational order to Plaintiff, in accordance with Woods.

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III. Order Providing Plaintiff Option to (1) Stand on Existing Opposition to Motion to

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Dismiss or (2) File Amended Opposition Per Amended Second Informational Order

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In light of the separately-issued amended second informational order and notice pursuant to

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Woods, the Court will provide Plaintiff with two options upon receipt of the notice and this order.

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Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw the existing

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opposition and file an amended opposition.

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Accordingly, it is HEREBY ORDERED that:

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1.

Within twenty-one (21) days from the date of service of this order, Plaintiff may

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elect to:

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a.

Stand on his existing opposition already submitted to the Court; or

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b.

Withdraw his opposition and file an amended opposition;

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2.

If Plaintiff does not elect to file an amended opposition in response to this order

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within twenty-one (21) days, the Court will consider his existing opposition in

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resolving Defendant’s motion to dismiss;

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3.

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If Plaintiff elects to file an amended opposition, the Court will not consider
Defendant’s existing reply; and

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4.

Defendant may file an amended reply pursuant to Local Rule 230(l).

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IT IS SO ORDERED.

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Dated:
7j8cce

July 18, 2012
UNITED STATES MAGISTRATE JUDGE

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