Fearence v. Schulteis et al
Filing
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AMENDED SECOND INFORMATIONAL ORDER-NOTICE and WARNING of Requirements for Opposing Defendants' 22 Motion to Dismiss signed by Magistrate Judge Gary S. Austin on 8/23/2012. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAQUES FEARENCE,
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Plaintiff,
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1:08-cv-00615-LJO-GSA-PC
AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS
v.
L. L. SHULTEIS, et al.,
(Doc. 22)
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Defendants.
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Plaintiff is proceeding pro se in this civil action. Defendants filed a motion to dismiss for
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failure to exhaust and failure to state a claim on December 16, 2011, and pursuant to Woods v.
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Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the Court
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hereby notifies Plaintiff of the following rights and requirements for 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:
6i0kij
August 23, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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