Thomas David Rice v. WVDC Facility Commander et al

Filing 44

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. On or before 10/17/2013, Plaintiff is Ordered to either (a) serve and file his opposition to Defendants' motion to dismiss, or (b) serve and file his notice of non-opposition and/or a notice of voluntary dismissal of this action, or (c) show cause in writing why the Court should not deem his failure to file an opposition as consent to the granting of the motion and why this action should not be dismissed for failure to prosecute. See document for more information. (Attachments: # 1 Court's Order filed 6/19/2013) (ts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS DAVID RICE,

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Plaintiff,
v.
W.V.D.C FACILITY
COMMANDER, et al.,

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Defendants.
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NO. EDCV 12-1729-GHK (MAN)
ORDER RE: DEFENDANTS’ MOTION
TO DISMISS; SETTING BRIEFING
SCHEDULE; AND PROVIDING NOTICE
TO PLAINTIFF

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On June 18, 2013, Defendants filed and served a “Motion To Dismiss

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Complaint Pursuant To FRCP 12(b)(6)” with supporting memorandum of

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points and authorities (“Motion”). In light of Plaintiff’s incarcerated

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status and pursuant to Local Rule 7-15, the Court will dispense with

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oral argument and will take the Motion under submission, once briefing

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is completed.

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Motion is VACATED.

Accordingly, the July 23, 2013 hearing date set for the

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The following briefing schedule governs the Motion:

by no later

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than August 2, 2013, Plaintiff shall file and serve his Opposition to

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the Motion; Defendants will have 14 days from the date on which they

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receive the Opposition in which to file and serve a Reply.

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By the Motion, Defendants contend, among other things, that this

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action must be dismissed, because Plaintiff allegedly has failed to

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exhaust his administrative remedies with respect to his claims.

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Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the Ninth Circuit held

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that, when the defendant contends that a prisoner asserting civil rights

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claims has failed to exhaust his administrative remedies, the defendant

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may raise its challenge through a pretrial motion brought pursuant to

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Rule 12(b) of the Federal Rules of Civil Procedure, rather than through

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a motion for summary judgment.

In

Such a motion is considered to be an

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“unenumerated Rule 12(b) motion.”

Id. at 1119.

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indicated that, when such an unenumerated Rule 12(b) motion is brought,

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the prisoner-plaintiff must receive fair notice of the procedure to be

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employed in resolving the motion.

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respect to the Motion’s contention that Plaintiff has failed to exhaust

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his administrative remedies, Plaintiff is advised as follows:

Id. at 1120 n.14.

The Ninth Circuit

Accordingly, with

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By the Motion, Defendants seek to have your case dismissed.

In

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particular, the Motion requests that Plaintiff’s Complaint be dismissed.

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In other words, if the Court grants Defendants’ Motion in full, the

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Complaint may be dismissed in part or in its entirety, and this case may

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be terminated.

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In deciding the exhaustion issue raised by the Motion, the Court

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may look beyond the pleadings and decide disputed issues of fact.

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means that the Court may consider not only the allegations of the

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Complaint and any exhibits thereto but also any admissible declarations,

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affidavits, or documentary evidence submitted by the parties in support

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of or in opposition to the Motion, to the extent that they bear on the
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This

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exhaustion issue. If, in considering these matters, the Court concludes

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that Plaintiff has not exhausted his administrative remedies with

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respect to some or all of the claims, the proper remedy will be to grant

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the Motion and to dismiss this action, in part if not in full, without

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prejudice.

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1164, 1175-76 (9th Cir. 2005).

Wyatt, 315 F.3d at 1120; see also Lira v. Herrera, 427 F.3d

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In addition, Plaintiff is reminded that he must comply with the

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provisions of Rule 5 of the Federal Rules of Civil Procedure and Local

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Rule 5-3 of the Court, concerning service on Defendants’ counsel of all

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papers filed with the Court.

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to any document submitted for filing.

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document as to which a proof of service has not been filed.

Plaintiff must append a proof of service
The Court will not consider any

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DATED: June 19, 2013.

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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