Olive v. Narayan

Filing 24

ORDER Permitting Plaintiff Opportunity to Withdraw Opposition and File Amended Opposition in Light of Rand Notice signed by Magistrate Judge Gary S. Austin on 04/13/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN DWAYNE OLIVE, 12 Plaintiff, 13 vs. 14 Defendant. ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF RAND NOTICE PRATAP LAKSHMI NARAYAN, 15 1:15-cv-01645-GSA-PC TWENTY-ONE DAY DEADLINE 16 17 18 19 I. BACKGROUND 20 Damien Dwayne Olive (APlaintiff@) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 22 commencing this action on October 30, 2015. (ECF No. 1.) This action now proceeds with the 23 First Amended Complaint filed on April 28, 2016, against sole defendant Dr. Pratap Lakshmi 24 Narayan (“Defendant”), on Plaintiff’s Eighth Amendment medical claim. (ECF No. 11.) 25 On January 26, 2017, Defendant filed a motion to dismiss this case for failure to state a 26 claim and failure to exhaust administrative remedies before filing suit. (ECF No. 17.) On 27 February 28, 2017, Plaintiff filed an opposition to the motion. (ECF No. 20.) On March 7, 28 2017, Defendant filed a reply to the opposition. (ECF No. 22.) 1 1 Defendant did not provide Plaintiff with a Rand2 Notice and Warning, pursuant to the 2 Ninth Circuit’s requirement in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), informing 3 Plaintiff of his rights and responsibilities in opposing Defendant’s motion to dismiss. 4 Therefore, the court shall, by this order, provide Plaintiff with a Rand Notice and Warning and 5 allow him an opportunity to withdraw his opposition to Defendant’s pending motion and file an 6 amended opposition. 7 8 II. RAND NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT’S MOTION TO DISMISS 9 In the Ninth Circuit, when the plaintiff is a prisoner proceeding pro se in a civil rights 10 case, and a defendant files a motion for summary judgment or a motion to dismiss for failure to 11 exhaust administrative remedies, the defendant or the court is required to provide plaintiff with 12 a Notice and Warning informing the plaintiff of his or her rights and responsibilities in 13 opposing the motion. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). The court shall, bu this 14 notice, notifys Plaintiff of the following rights and requirements for opposing Defendant’s 15 motion to dismiss: 16 17 NOTICE AND WARNING OF REQUIREMENTS DEFENDANT’S MOTION TO DISMISS FOR OPPOSING 18 Pursuant to Woods v. Carey, the Court now hereby notifies Plaintiff of the following 19 rights and requirements for opposing Defendant’s motion to dismiss. Woods v. Carey, 684 20 F.3d 934 (9th Cir. 2012) (Fair notice of the requirements needed to defeat a defendant's motion 21 to dismiss for failure to exhaust administrative remedies must be provided to a pro se prisoner 22 litigant in a civil rights case.) 23 ultimate responsibility of assuring that the prisoner receives fair notice remains with the district 24 court.” Woods, 684 F.3d at 940. 25 /// If . . . defendants fail to provide appropriate notice, “the 26 27 28 2 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). 2 1 NOTICE AND WARNING: 2 Defendant has filed a motion to dismiss this case for failure to state a 3 claim and failure to exhaust administrative remedies as to one or more 4 claims in the complaint. The failure to exhaust administrative remedies is 5 subject to a motion for summary judgment or, if a failure to exhaust is clear 6 on the face of the complaint, a motion to dismiss under Rule 12(b)(6). 7 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “The motion to dismiss 8 for failure to exhaust administrative remedies is similar to a motion for a 9 summary judgment in that the district court will consider materials beyond 10 the pleadings; the plaintiff has a ‘right to file counter-affidavits or other 11 responsive evidentiary materials.’” Stratton v. Buck, 697 F.3d 1004, 1008 12 (9th Cir. 2012), quoting Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998). 13 If the Court determines that all of the claims are unexhausted, the 14 case will be dismissed, which means Plaintiff=s case is over. If some of the 15 claims are exhausted and some are unexhausted, the unexhausted claims 16 will be dismissed and the case will proceed forward only on the exhausted 17 claims. Jones v. Bock, 549 U.S. 199, 219-224, 127 S. Ct. 910, 923-26 (2007). 18 Moreover, if Plaintiff fails to state any claims in the First Amended 19 Complaint, the case will be dismissed, which means that Plaintiff’s case is 20 over. A dismissal for failure to exhaust is without prejudice. Id. 21 Unless otherwise ordered, all motions to dismiss shall be briefed 22 pursuant to Local Rule 230(l). Plaintiff is required to file an opposition or a 23 statement of non-opposition to Defendant’s motion to dismiss. Local Rule 24 230(l). 25 opposition to the motion, this action may be dismissed, with prejudice, for 26 failure to prosecute. The opposition or statement of non-opposition must be 27 filed not more than 21 days after the date of service of the motion. Id. If Plaintiff fails to file an opposition or a statement of non- 28 3 1 If responding to Defendant’s= motion to dismiss for failure to 2 exhaust the administrative remedies, Plaintiff may not simply rely on 3 allegations in the complaint. Instead, Plaintiff must oppose the motion by 4 setting forth specific facts in declaration(s) and/or by submitting other 5 evidence regarding the exhaustion of administrative remedies. See Fed. R. 6 Civ. P. 43(c). Unsigned declarations will be stricken, and declarations not 7 signed under penalty of perjury have no evidentiary value. If Plaintiff does 8 not submit his own evidence in opposition, the Court may conclude that 9 Plaintiff has not exhausted the administrative remedies and the case will be 10 11 dismissed in whole or in part. III. CONCLUSION AND ORDER 12 Pursuant to the Ninth Circuit’s decision in Woods, Plaintiff has now been provided with 13 “fair notice” of the requirements for opposing Defendant’s motion to dismiss for failure to 14 exhaust remedies. In light of this notice, the court finds good cause at this juncture to open a 15 twenty-one-day time period for Plaintiff to file further opposition to Defendant’s motion to 16 dismiss, if he so wishes. The court will not consider multiple oppositions, however, and 17 Plaintiff has two options upon receipt of this order. Plaintiff may either (1) stand on his 18 previously-filed opposition or (2) withdraw it and file an amended opposition. The amended 19 opposition, if any, must be complete in itself and must not refer back to any of the opposition 20 documents Plaintiff filed on February 28, 2017. L.R. 220.5 21 Accordingly, it is HEREBY ORDERED that: 22 1. Plaintiff may, within thirty (30) days from the date of service of this order, 23 withdraw his opposition and file an Amended Opposition to Defendant’s motion 24 to dismiss of January 26, 2017; 25 26 27 28 5 Local Rule 220 provides, in part: “Unless prior approval to the contrary is obtained from the Court, every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed pleading.” 4 1 2. If Plaintiff does not file an Amended Opposition in response to this order within 2 twenty-one days, Plaintiff’s existing opposition, filed on February 28, 2017, will 3 be considered in resolving Defendant’s motion to dismiss; and 4 3. 5 If Plaintiff elects to file an Amended Opposition, Defendant may file a reply pursuant to Local Rule 230(l). 6 7 8 9 IT IS SO ORDERED. Dated: April 13, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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