Braley v. Wasco State Prison, et al

Filing 99

AMENDED SECOND INFORMATIONAL ORDER - Notice And Warning Of Requirements For Opposing Defendants' Motion To Dismiss (ECF No. 78 ), signed by Magistrate Judge Barbara A. McAuliffe on 7/12/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THOMAS D. BRALEY,

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CASE NO. 1:07-cv-01423-AWI-BAM

Plaintiff,

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AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS

v.

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WASCO STATE PRISON, et al.,

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Defendants.

(ECF No. 78)
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Plaintiff Thomas D. Braley (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Defendants filed a motion to

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dismiss for failure to exhaust onDecember 15, 2011, and pursuant to Woods v. Carey, Nos. 09-

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15548, 09-16113, 2012 WL 2626912 (9th Cir. Jul. 6, 2012) and Wyatt v. Terhune, 315 F.3d 1108

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(9th Cir. 2003), the Court hereby notifies Plaintiff of the following rights and requirements for

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opposing the motion:

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1. Unless otherwise ordered, all motions to dismiss shall be briefed pursuant to Local Rule
230(l).

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2. Plaintiff is required to file an opposition or a statement of non-opposition to Defendants’

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motion to dismiss. Local Rule 230(l). If Plaintiff fails to file an opposition or a statement of non-

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opposition to the motion, this action may be dismissed, with prejudice, for failure to prosecute. The

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opposition or statement of non-opposition must be filed not more than 21 days after the date of

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service of the motion. Id.

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3. Defendants have filed a motion to dismiss for failure to exhaust the administrative
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remedies as to one or more claims in the complaint. The failure to exhaust the administrative

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remedies is subject to an unenumerated Rule 12(b) motion to dismiss. Wyatt, 315 F.3d at 1119

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(citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988)

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(per curiam)). In deciding a motion to dismiss for failure to exhaust, the Court will look beyond the

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pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20 (quoting Ritza, 837 F.2d

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at 368). If the Court concludes that Plaintiff has not exhausted the administrative remedies, the

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unexhausted claims must be dismissed and the Court will grant the motion to dismiss. Wyatt, 315

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F.3d at 1120. If all of the claims are unexhausted, the case will be dismissed, which means

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Plaintiff’s case is over. If some of the claims are exhausted and some are unexhausted, the

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unexhausted claims will be dismissed and the case will proceed forward only on the exhausted

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claims. Jones v. Bock, 549 U.S. 199, 219-224, 127 S. Ct. 910, 923-26 (2007). A dismissal for

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failure to exhaust is without prejudice. Wyatt, 315 F.3d at 1120.

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If responding to Defendants’ unenumerated 12(b) motion to dismiss for failure to exhaust

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the administrative remedies, Plaintiff may not simply rely on allegations in the complaint. Instead,

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Plaintiff must oppose the motion by setting forth specific facts in declaration(s) and/or by submitting

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other evidence regarding the exhaustion of administrative remedies. See Fed. R. Civ. P. 43(c); Ritza,

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837 F.2d at 369. If Plaintiff does not submit his own evidence in opposition, the Court may conclude

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that Plaintiff has not exhausted the administrative remedies and the case will be dismissed in whole

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or in part.

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4. Unsigned declarations will be stricken, and declarations not signed under penalty of
perjury have no evidentiary value.

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5. The failure of any party to comply with this order, the Federal Rules of Civil Procedure,

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or the Local Rules of the Eastern District of California may result in the imposition of sanctions

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including but not limited to dismissal of the action or entry of default.

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IT IS SO ORDERED.
Dated:

July 12, 2012

/s/ Barbara A. McAuliffe
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cm411

UNITED STATES MAGISTRATE JUDGE

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