Bussiere v. Cano et al

Filing 95

ORDER Providing Plaintiff Option to (1) Stand on Existing Opposition or (2) File Amended Opposition per Separately-Issued Amended Second Informational Order and Notice signed by Magistrate Judge Gerald B. Cohn on 07/18/2012. Response due by 8/13/2012.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ARTHUR T. BUSSIERE,

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CASE NO. 1:10-cv-00945-AWI-GBC (PC)

Plaintiff,

ORDER PROVIDING PLAINTIFF OPTION TO
(1) STAND ON EXISTING OPPOSITION OR
(2) FILE AMENDED OPPOSITION PER
SEPARATELY-ISSUED AMENDED SECOND
INFORMATIONAL ORDER AND NOTICE

Defendants.

Doc. 68

v.
CANO, et al.,

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/ TWENTY-ONE DAY DEADLINE

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I. Procedural History and Plaintiff’s Complaint
On May 26, 2010, Plaintiff Arthur T. Bussiere (“Plaintiff”), a state prisoner proceeding pro
se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.

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In Plaintiff’s complaint,1 he states that in June 1995, he was arrested on sexual assault

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charges in New Hampshire, but the district attorney did not prosecute him on the charges. Compl.

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at 5, Doc. 1. In 1997, Plaintiff was sentenced to sixteen years to life on a second degree murder

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charge in San Diego, California. Id. On August 10, 2001, Plaintiff arrived at Pleasant Valley State

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Prison (“PVSP”).2 Id. Due to the prior arrest in 1995, Plaintiff was given a classification code “R”,

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which designates an inmate with a history of sex crimes. Id. Defendants Cano and six unknown

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The allegations in Plaintiff’s complaint are relevant to explain the long procedural history in this case.

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Plaintiff is currently held at California Substance Abuse Treatment Facility in Corcoran, California.
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committee members refused to remove the “R” suffix, which Plaintiff contends is erroneously placed

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in his file. Id. Defendants Cano and six unknown committee members released Plaintiff into the

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general population knowing his safety would be threatened. Id. On November 21, 2009, Plaintiff’s

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cell mate assaulted him because of the “R” designation. Id. at 6. On January 3, 2010, Defendant

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Lopez opened his cell door, alleging Plaintiff had a medical appointment, and at the same time

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opened the cell door of another inmate who then assaulted Plaintiff. Id. Defendant Lopez

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subsequently witnessed another inmate assaulting Plaintiff again, later that same day. Id. On January

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11, 2011, Plaintiff notified the Court of his willingness to proceed on his a cognizable claims against

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Defendant Cano and Six Doe Defendants3 for Eighth Amendment deliberate indifference to safety

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and against Defendant Lopez (“Defendant”) for Eighth Amendment failure to protect. Docs. 13, 16.

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On January 24, 2011, the Court issued a second informational order, advising Plaintiff that

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Defendants may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative

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remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt

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v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int’l Longshoremen’s &

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Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 19. On June 1, 2011,

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Defendant Cano filed a motion to dismiss, alleging Plaintiff’s 2003 claims4 against Defendant Cano

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were barred by the statute of limitations. Doc. 28. On November 7, 2011, Defendant Lopez filed a

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Motion to Dismiss for failure to exhaust administrative remedies. Doc. 62. On December 2, 2011,

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Plaintiff filed an Opposition to Defendant Lopez’s motion to dismiss. Doc. 68. On December 13,

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2011, Defendant Lopez filed a Reply to Plaintiff’s opposition. Doc. 69. On January 9, 2012, Plaintiff

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filed a Sur-Reply. Doc. 70. On February 9, 2012, Plaintiff filed a motion to amend his complaint,

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regarding the 2003 claims against the Six Doe Defendants. Doc. 75. On February 10, 2012, the Court

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adopted findings and recommendations and dismissed Plaintiff’s 2003 claims against Defendant

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Cano, as barred by the statute of limitations. Doc. 77. On March 5, 2012, the Court issued Findings

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The six unknown committee members.

In Defendant Cano’s motion to dismiss, he clarified that on July 23, 2003, Plaintiff first appeared before
Defendant Cano for a classification hearing. Def. Cano. Mot. Dismiss at 2 & Ex. A, Doc. 28. Therefore, Plaintiff’s
claims against Defendant Cano originated in 2003, not 2001, as Plaintiff alleged in his complaint. Pl. Compl. at 5,
Doc. 1.
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and Recommendations, recommending granting the remaining Defendant’s motion to dismiss, for

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failure to exhaust administrative remedies. Doc. 81. On March 23, 2012, Plaintiff filed Objections.

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Doc. 84. On May 29, 2012, Plaintiff filed an Addendum to Objections. Doc. 90. On June 5, 2012,

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Defendant Lopez filed a Motion to Strike Plaintiff’s Addendum to Objections. Doc. 91. On June 11,

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2012, Plaintiff filed a Second Addendum to Objections. Doc. 92. On June 18, 2012, Plaintiff filed

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an Opposition to Defendant Lopez’s Motion to Strike. Doc. 94.

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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 January 24, 2011, this Court issued a second

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

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motion to dismiss to Plaintiff. Doc. 19. On November 7, 2011, Defendant Lopez filed a motion to

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dismiss. Doc. 62. In order to address the time delay between providing notice and the filing of

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defendant’s motion, the Court issued an amended second informational order to Plaintiff, in

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accordance with Woods. The Court notified Plaintiff of the rights and requirements for opposing a

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motion to dismiss for failure to exhaust administrative remedies pursuant to Woods and Wyatt, 315

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F.3d at 1108.

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III. Order Providing Plaintiff Option to (1) Stand on Existing Opposition or (2) File

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Amended Opposition Per Amended Second Informational Order and Notice

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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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