Martinez v. Kings County, et al.

Filing 25

ORDER Providing Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Separately-Issued Notice, signed by Magistrate Judge Dennis L. Beck on 7/18/12. 30-Day Deadline. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA

8
9

LUIS ROBERTO MARTINEZ,

CASE NO. 1:10-cv-01569-AWI-DLB PC

10
Plaintiff,

11
v.

12
13

ORDER PROVIDING PLAINTIFF
OPPORTUNITY TO WITHDRAW
OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF
SEPARATELY-ISSUED NOTICE

KINGS COUNTY, et al.,

14

Defendants.

THIRTY DAY DEADLINE

15
16

Plaintiff Luis Roberto Martinez is a state prisoner proceeding pro se and in forma

17
18

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

19

against Defendants Tami Arden, P. Pascua, R. Martinez, V. Ignacio, P. Linihan, and K. Englert.

20

On February 13, 2012, Defendants filed a motion to dismiss in part for failure to exhaust

21

administrative remedies. Plaintiff filed an opposition on March 6, 2012, Defendants filed a reply

22

on March 13, 2012, and the motion was submitted under Local Rule 230(l).
However, in light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113,

23
24

2012 WL 2626912, at *5 (9th Cir. Jul. 6, 2012), Plaintiff must be provided with “fair notice” of

25

the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies

26

at the time the motion is brought and the notice given in this case some months prior does not

27

suffice.

28

By separate order issued concurrently with this order, the Court provided the requisite

1

1

notice. The Court will not consider two oppositions, however, and Plaintiff has two options

2

upon receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed

3

opposition or (2) withdraw it and file an amended opposition.1

4

Accordingly, it is HEREBY ORDERED that:

5

1.

6

Plaintiff may, within thirty (30) days from the date of service of this order,

withdraw his opposition and file an amended opposition;

7

2.

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

8

existing opposition will be considered in resolving Defendants’ motion to dismiss for failure to

9

exhaust administrative remedies; and

10
11

3.

If Plaintiff elects to file an amended opposition, Defendants’ existing reply will

not be considered and they may file an amended reply pursuant to Local Rule 230(l).

12
13

IT IS SO ORDERED.

14

Dated:

/s/ Dennis

July 18, 2012

15

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

16

3b142a

17
18
19
20
21
22

23
24
25
26
27

The Court notes the comprehensive nature of Plaintiff’s existing opposition, but its adequacy is
apparently irrelevant. Plaintiff is entitled to an opportunity to file an amended opposition following “fair
notice” to him of the requirements for opposing a motion to dismiss for failure to exhaust administrative
remedies. Woods, 2012 WL 2626912, at *5.
1

28

2