Fields v. Masiel et al

Filing 29

ORDER Permitting Pliantiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Separately Issued Motion to Dismiss Notice 26 , signed by Magistrate Judge Barbara A. McAuliffe on 7/12/12. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN FIELDS,

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CASE NO. 1:10-cv–01699-AWI-BAM PC
Plaintiff,

ORDER PERMITTING PLAINTIFF
OPPORTUNITY TO WITHDRAW
OPPOSITION AND FILE AMENDED
OPPOSITION IN LIGHT OF SEPARATELYISSUED MOTION TO DISMISS NOTICE

Defendants.

(ECF No. 26)

v.
JOSE MASIEL, et al.,

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THIRTY-DAY DEADLINE
/

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Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Masiel,

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Aguirre, and Hernandez for retaliation in violation of the First Amendment. On May 16, 2012,

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Defendants filed a motion to dismiss for failure to exhaust administrative remedies. Plaintiff filed

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an opposition on June 4, 2012, and Defendants filed a reply on June 11, 2012. The motion was

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submitted under Local Rule 230(l).

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However, in light of the recent decision in Woods v. Carey, Nos. 09-15548, 09-16113, 2012

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

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requirements for opposing a motion to dismiss for failure to exhaust at the time the motion is brought

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and the notice given in this case some four months prior does not suffice. Id.

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

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The Court will not consider multiple oppositions, however, and Plaintiff has two options upon

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receipt of the notice and this order. Plaintiff may either (1) stand on his previously-filed opposition
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or (2) withdraw it and file an amended opposition.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff may, within thirty (30) days from the date of service of this order, withdraw
his opposition and file an amended opposition;

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

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opposition will be considered in resolving Defendants’ motion for summary

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judgment; and

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3.

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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).

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IT IS SO ORDERED.
Dated:
cm411

July 12, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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