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)

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