Torres v. Evans

Filing 21

ORDER re 16 Motion to Dismiss signed by District Judge Frank R. Zapata on 6/21/2010. Response to Defendants' Motion to Dismiss due by 8/6/2010. (Sant Agata, S)

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

M A N U E L TAMAYO TORRES, Plaintiff, vs. M IK E EVANS, ET AL., D e fe n d a n ts .

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N o . CV 1-08-00748-FRZ ORDER

D e fe n d a n ts have filed a Motion to Dismiss (Doc. #16) 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 re q u ire d by 42 U.S.C. § 1997e(a). NOTICE--WARNING TO PLAINTIFF T H I S NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT 1 D e fe n d a n ts ' Motion to Dismiss seeks to have your case dismissed for failure to e x h a u s t 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 s e . When deciding a motion to dismiss for failure to exhaust, the Court may consider e vid e n c e beyond your complaint, including sworn declarations and other admissible d o c u m e n ta ry evidence.

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

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M o re o ve r, if Defendants produce admissible evidence demonstrating that you failed to exhaust available administrative remedies, your complaint will be dismissed without p re ju d ic e unless your response to Defendants' Motion includes admissible evidence s u ffic ie n t to show that you exhausted all available administrative remedies or that no a d m in is tra tive remedies were available to you. Types of admissible evidence may include copies of your grievances, grievance re s p o n s e s and sworn declarations. The declarations or other sworn testimony setting out your specific facts must be m a d e on personal knowledge, must set forth such facts as would be admissible as evidence, a n d must affirmatively show that the affiant is competent to testify regarding the matters in th e declaration 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 SE 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 I N 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 C o u rt granting 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) days from the date the response is filed. Y o u must timely respond to all motions. The Court may, in its discretion, treat your failure to respond to Defendants' Motion to Dismiss as a consent to the granting of that Motion without further notice, and judgment

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m a y be entered dismissing this action. See Brydges v. Lewis, 18 F.3d 651 (9th Cir. 1994) (p e r curiam).

D A T E D this 21 st day of June, 2010.

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