McMaster v. Yates, et al

Filing 52

ORDER re 51 MOTION to DISMISS signed by District Judge Frank R. Zapata on 4/12/2010. Plaintiff's Response to Motion to Dismiss due by 6/1/2010. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

D a n a McMaster, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) )

N o . CV 1-04-6453-FRZ ORDER

D e f en d a n ts have filed a Motion to Dismiss pursuant to Rule 12 of the Federal Rules o f Civil Procedure. Plaintiff must respond to all arguments raised by Defendants ; if Plaintiff f a ils to properly and timely oppose Defendants' motion to dismiss, this case will likely be d i sm is s e d without further notice to Plaintiff on the grounds requested by Defendants. D e f e n d a n ts ' motion to dismiss seeks dismissal on several grounds; as to certain claims, D e f en d a n ts seek dismissal for failure to exhaust prison administrative remedies as required b y 42 U.S.C. § 1997e(a). As such, the Court provides this notice to Plaintiff. N O T I C E --W A R N I N G TO PLAINTIFF T H I S NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT 1 D e f en d a n ts ' motion to dismiss seeks to have specific claims dismissed, in part, on the g ro u n d that you failed to exhaust prison administrative remedies as required by 42 U.S.C.

W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003).

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§ 1997e(a). A motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure w ill, if granted, end your case. When deciding a motion to dismiss for failure to exhaust, the C o u rt may consider evidence beyond your complaint, including sworn declarations and other a d m i s s ib le documentary evidence. Moreover, if Defendants produce admissible evidence d e m o n s tra tin g that you failed to exhaust available administrative remedies, your complaint w ill be dismissed without prejudice unless your response to Defendants' Motion includes a d m i s s ib le evidence sufficient to show that you exhausted all available administrative re m e d ies or that no administrative remedies were available to you. Types of admissible evide n c e may include copies of your grievances, grievance responses and sworn declarations. T h e declarations or other sworn testimony setting out your specific facts must be made o n personal knowledge, must set forth such facts as would be admissible as evidence, and m u s t affirmatively show that the affiant is competent to testify regarding the matters in the d e c la ra tio n or other sworn testimony. If the Court determines that any of the declarations or other sworn testimony are made in bad faith, the Court may order the party employing the bad faith to pay the other party for c o s ts associated with controverting that testimony, including the other party's attorney's fees. I f you do not submit your own evidence in opposition to the motion, the moving p a rty's evidence might be taken as truth and those claims addressed in the motion will be D IS M IS S E D without a trial. IF THAT OCCURS, THERE WILL BE NO TRIAL ON T H O S E CLAIMS. Y O U SHALL FILE ANY RESPONSE TO THE MOTION TO DISMISS W I T H IN FORTY-FIVE (45) DAYS FROM THE DATE OF THIS ORDER. If you do n o t respond to the motion, your failure to respond can be viewed as you agreeing to the Court g ra n tin g the Motion. See L.R. 78-230(l). IF THAT OCCURS, THOSE CLAIMS A D D R E S S E D IN THE MOTION TO DISMISS WILL BE DISMISSED AND THERE W I L L BE NO TRIAL ON THOSE CLAIMS. Any reply shall be filed within twenty (20) d a ys from the date the response is filed.

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Y o u must timely respond to all motions. The Court may, in its discretion, treat your f a ilu re to respond to Defendants' Motion to Dismiss as a consent to the granting of that M o tio n without further notice, and judgment may be entered dismissing this action. See B ryd g es v. Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam).

D A T E D this 12 th day of April, 2010.

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