Bobby James Williams v. Hickman, Et Al.

Filing 53

INFORMATIONAL ORDER, Motion to Dismiss Notice, and Summary Judgment Notice, signed by District Judge G. Murray Snow on 9/23/2009. (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P la in tif f , proceeding pro se, having filed a complaint pursuant to 42 U.S.C. § 1983 a n d Defendants having answered, Parties to this litigation shall take note of the following r e q u ir e m e n t s: 1. U n les s otherwise ordered, all motions to dismiss, motions for summary vs. R o d e ric k Hickman, et al, D e f e n d a n ts . B o b b y James Williams, P la in tif f , ) ) ) ) ) ) ) ) ) ) ) N o . 1:05-cv-1649-GMS IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

I N F O R M A T I O N A L ORDER, MOTION T O DISMISS NOTICE, AND SUMMARY J U D G M E N T NOTICE

ju d g m e n t, motions concerning discovery, motions pursuant to Rules 7, 11, 12, 15, 41, 55, 5 6 , 59 and 60 of the Federal Rules of Civil Procedure, and motions pursuant to Local Rule 1 1 -11 0 shall be briefed pursuant to Local Rule 78-230(m). 2. A t some point in the litigation, Defendant may file a motion to dismiss this

a c t io n on any number of grounds. Plaintiff is advised that he has the right to oppose the m o tio n in writing. Written oppositions must be filed not more than 18 days, plus 3 days for m a ilin g , after the date of service of the motion to dismiss. Local Rule 78-230(m) provides th a t the failure to oppose a motion "may be deemed a waiver of any opposition to the g r a n t in g of the motion . . . ." This means that the Court may deem Plaintiff's failure to

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o p p o s e Defendant's motion to dismiss as a waiver, and may recommend that the motion be g r a n te d on that basis. 3. A t some point in the litigation, Defendant may file a motion to dismiss for

f a ilu re to exhaust administrative remedies as to one or more claims in the complaint. The f a ilu re to exhaust administrative remedies is subject to an unenumerated Rule 12(b) motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l L o n g s h o r e m e n 's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per c u riu m )). In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the c o u rt may look beyond the pleadings and decide disputed issues of fact." Wyatt, 837 F.3d a t 1119-20 (quoting Ritza, 837 F.2d at 368). If th district court concludes that the prisoner h a s not exhausted administrative remedies, the case will be dismissed without prejudice. W y a tt, 837 F.3d at 1120. This means that the case will end. If Plaintiff exhausts

a d m in is tra tiv e remedies at a later date, he may file the case as a new action. I f Defendant makes an unenumerated 12(b) motion to dismiss for failure to exhaust a d m in istra tiv e remedies, plaintiff may not simply rely on allegations in the complaint. In s te a d , Plaintiff must oppose the motion by setting forth specific facts in declaration(s) and o th e r evidence regarding the exhaustion of administrative remedies. See Fed. R. Civ. P . 43(e); Ritza, 837 F.2d at 369. If Plaintiff does not submit his own evidence in

o p p o s itio n , the Court may conclude that Plaintiff has not exhausted administrative remedies a n d the case will be dismissed. 4. A t some point in the litigation, Defendant may move for summary judgment

a s to some or all of Plaintiff's claims. Pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9 th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), Plaintiff is advised of th e following requirements for opposing a motion for summary judgment made by D e f e n d a n t pursuant to Rule 56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order of judgment on some or all of Plaintiff's claims in favor of Defendant w ith o u t trial. See Rule 56(b). Defendant's motion will set forth the facts which Defendant -2-

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c o n te n d s are not reasonably subject to dispute and that entitle Defendant to judgment as a m a tte r of law. See Rule 56(c). P la in tif f has the right to oppose a motion for summary judgment. To oppose the m o tio n , Plaintiff must show proof of his claims. Plaintiff may agree with the facts set forth in Defendant's motion but argue that Defendant is not entitled to judgment as a matter of la w . Plaintiff may show Defendant's facts are disputed in one or more of the following w a ys : (1) Plaintiff may rely upon statements made under the penalty of perjury in the c o m p lain t if the complaint shows that Plaintiff has personal knowledge of the matters stated a n d if Plaintiff calls to the Court's attention those parts of the complaint upon which P lain tiff relies; (2) Plaintiff may also serve and file affidavits or declarations 1 setting forth th e facts which Plaintiff believes prove Plaintiff's claims (the persons who sign the affidavit o r declaration must have personal knowledge of the facts stated; (3) Plaintiff may also rely u p o n written records but Plaintiff must prove that the records are what Plaintiff claims they are ;2 (4) Plaintiff may also rely upon all or any part of the transcript of one or more d e p o sitio n s, answers to interrogatories, or admissions obtained in this proceeding. Should P la i n t i f f fail to contradict Defendant's motion with affidavits, declarations, or other e v id e n c e, Defendant's evidence will be taken as truth, and final judgment may be entered w ith o u t a full trial. See Rule 56(e). If there is some good reason why such facts are not available to Plaintiff when re q u ire d to oppose such a motion, the Court will consider a request to postpone considering

An affidavit is a written declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An unsworn declaration has the same effect as an affidavit, provided that it is dated and signed under penalty of perjury, as follows: "I declare under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746. Affidavits and declarations must be made on personal knowledge and must set forth facts as would be admissible in evidence. See Rule 56(e). Sworn or certified copies of all papers referred to in an affidavit must be attached to the affidavit and served on the opposing party. Rule 56(e). -32

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D e f e n d a n t's motion. See Rule 56(f). If Plaintiff does not serve and file a request to p o s tp o n e consideration of Defendant's motion or written opposition to the motion, the C o u rt may consider Plaintiff's failure to act as a waiver of opposition to Defendant's m o tio n . Plaintiff's waiver of opposition to Defendant's motion may result in the entry of s u m m a ry judgment against Plaintiff. 5. s tric k e n . 6. T h e failure of any party to comply with this Order, the Federal Rules of Civil A motion supported by affidavits or declarations that are unsigned will be

P r o c e d u re , or the Local Rules of Court, may result in the imposition of sanctions including, b u t not limited to, dismissal of the action or entry of default. I T IS SO ORDERED. D A T E D this 23rd day of September, 2009.

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