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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ARTHUR T. BUSSIERE, 11 12 13 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., 14 15 / TWENTY-ONE DAY DEADLINE 16 17 18 19 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. 20 In Plaintiff’s complaint,1 he states that in June 1995, he was arrested on sexual assault 21 charges in New Hampshire, but the district attorney did not prosecute him on the charges. Compl. 22 at 5, Doc. 1. In 1997, Plaintiff was sentenced to sixteen years to life on a second degree murder 23 charge in San Diego, California. Id. On August 10, 2001, Plaintiff arrived at Pleasant Valley State 24 Prison (“PVSP”).2 Id. Due to the prior arrest in 1995, Plaintiff was given a classification code “R”, 25 which designates an inmate with a history of sex crimes. Id. Defendants Cano and six unknown 26 27 1 The allegations in Plaintiff’s complaint are relevant to explain the long procedural history in this case. 28 2 Plaintiff is currently held at California Substance Abuse Treatment Facility in Corcoran, California. Page 1 of 4 1 committee members refused to remove the “R” suffix, which Plaintiff contends is erroneously placed 2 in his file. Id. Defendants Cano and six unknown committee members released Plaintiff into the 3 general population knowing his safety would be threatened. Id. On November 21, 2009, Plaintiff’s 4 cell mate assaulted him because of the “R” designation. Id. at 6. On January 3, 2010, Defendant 5 Lopez opened his cell door, alleging Plaintiff had a medical appointment, and at the same time 6 opened the cell door of another inmate who then assaulted Plaintiff. Id. Defendant Lopez 7 subsequently witnessed another inmate assaulting Plaintiff again, later that same day. Id. On January 8 11, 2011, Plaintiff notified the Court of his willingness to proceed on his a cognizable claims against 9 Defendant Cano and Six Doe Defendants3 for Eighth Amendment deliberate indifference to safety 10 and against Defendant Lopez (“Defendant”) for Eighth Amendment failure to protect. Docs. 13, 16. 11 On January 24, 2011, the Court issued a second informational order, advising Plaintiff that 12 Defendants may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative 13 remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt 14 v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int’l Longshoremen’s & 15 Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 19. On June 1, 2011, 16 Defendant Cano filed a motion to dismiss, alleging Plaintiff’s 2003 claims4 against Defendant Cano 17 were barred by the statute of limitations. Doc. 28. On November 7, 2011, Defendant Lopez filed a 18 Motion to Dismiss for failure to exhaust administrative remedies. Doc. 62. On December 2, 2011, 19 Plaintiff filed an Opposition to Defendant Lopez’s motion to dismiss. Doc. 68. On December 13, 20 2011, Defendant Lopez filed a Reply to Plaintiff’s opposition. Doc. 69. On January 9, 2012, Plaintiff 21 filed a Sur-Reply. Doc. 70. On February 9, 2012, Plaintiff filed a motion to amend his complaint, 22 regarding the 2003 claims against the Six Doe Defendants. Doc. 75. On February 10, 2012, the Court 23 adopted findings and recommendations and dismissed Plaintiff’s 2003 claims against Defendant 24 Cano, as barred by the statute of limitations. Doc. 77. On March 5, 2012, the Court issued Findings 25 26 3 27 4 28 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. Page 2 of 4 1 and Recommendations, recommending granting the remaining Defendant’s motion to dismiss, for 2 failure to exhaust administrative remedies. Doc. 81. On March 23, 2012, Plaintiff filed Objections. 3 Doc. 84. On May 29, 2012, Plaintiff filed an Addendum to Objections. Doc. 90. On June 5, 2012, 4 Defendant Lopez filed a Motion to Strike Plaintiff’s Addendum to Objections. Doc. 91. On June 11, 5 2012, Plaintiff filed a Second Addendum to Objections. Doc. 92. On June 18, 2012, Plaintiff filed 6 an Opposition to Defendant Lopez’s Motion to Strike. Doc. 94. 7 II. Woods v. Carey and Contemporaneous Notice 8 On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for 9 opposing a defendant’s motion to dismiss should be issued contemporaneously when a defendant 10 files a motion to dismiss, as opposed to a year or more in advance. Woods v. Carey, 2012 WL 11 2626912, at * 4 (9th Cir. Jul. 6, 2012). On January 24, 2011, this Court issued a second 12 informational order, containing the notice and warning of requirements for opposing a defendant’s 13 motion to dismiss to Plaintiff. Doc. 19. On November 7, 2011, Defendant Lopez filed a motion to 14 dismiss. Doc. 62. In order to address the time delay between providing notice and the filing of 15 defendant’s motion, the Court issued an amended second informational order to Plaintiff, in 16 accordance with Woods. The Court notified Plaintiff of the rights and requirements for opposing a 17 motion to dismiss for failure to exhaust administrative remedies pursuant to Woods and Wyatt, 315 18 F.3d at 1108. 19 III. Order Providing Plaintiff Option to (1) Stand on Existing Opposition or (2) File 20 Amended Opposition Per Amended Second Informational Order and Notice 21 In light of the separately-issued amended second informational order and notice pursuant to 22 Woods, the Court will provide Plaintiff with two options upon receipt of the notice and this order. 23 Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw the existing 24 opposition and file an amended opposition. 25 // 26 // 27 // 28 // Page 3 of 4 1 Accordingly, it is HEREBY ORDERED that: 2 1. Within twenty-one (21) days from the date of service of this order, Plaintiff may 3 elect to: 4 a. Stand on his existing opposition already submitted to the Court; or 5 b. Withdraw his opposition and file an amended opposition; 6 2. If Plaintiff does not elect to file an amended opposition in response to this order 7 within twenty-one (21) days, the Court will consider his existing opposition in 8 resolving Defendant’s motion to dismiss; 9 3. 10 If Plaintiff elects to file an amended opposition, the Court will not consider Defendant’s existing reply; and 11 4. Defendant may file an amended reply pursuant to Local Rule 230(l). 12 13 IT IS SO ORDERED. 14 15 Dated: 7j8cce July 18, 2012 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 of 4

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