Bermudez v. Yates

Filing 21

ORDER, signed by District Judge Frank R. Zapata on 10/13/2009. You shall file any response to the motion to dismiss within forty-five (45) days from the date of this order. If you do not respond to the motion, your failure to respond can be viewed as you agreeing to the Court granting the Motion. ( Filing Deadline: 12/1/2009) (Scrivner, E)

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

W ilf re d o Bermudez, Plaintiff, vs.

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N o . CV 1-06-1247-FRZ ORDER

D e f en d a n ts have filed a Motion to Dismiss (Doc. #20) pursuant to Rule 12(b) of the F e d e ra l Rules of Civil Procedure for failure to exhaust prison administrative remedies as req u ired by 42 U.S.C. § 1997e(a). 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 e n d a n ts' Motion to Dismiss seeks to have your case dismissed for failure to e x h a u st prison administrative remedies as required by 42 U.S.C. § 1997e(a). A motion to d is m is s under Rule 12(b) of the Federal Rules of Civil Procedure will, if granted, end your c a se . When deciding a motion to dismiss for failure to exhaust, the Court may consider e v id e n c e beyond your complaint, including sworn declarations and other admissible d o c u m e n ta ry evidence. Moreover, if Defendants produce admissible evidence demonstrating

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

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th a t you failed to exhaust available administrative remedies, your complaint will be dismissed w ith o u t prejudice unless your response to Defendants' Motion includes admissible evidence s u f f ic ie n t to show that you exhausted all available administrative remedies or that no a d m i n is tra tiv e remedies were available to you. Types of admissible evidence may include c o p ie s of your grievances, grievance responses and sworn declarations. The 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. If 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(m). 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. 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 without

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p re ju d ic e pursuant to Rule 7.2(i) of the Local Rules of Civil Procedure. See Brydges v. L ew is, 18 F.3d 651 (9th Cir. 1994) (per curiam). D A T E D this 13 th day of October, 2009.

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