Wilkinson v. Slankard, et al.

Filing 15

ORDER, signed by District Judge Cindy K. Jorgenson on 10/20/2009. Plaintiff must file a response to Defendant's Motion to Dismiss, together with copies of grievances, sworn declarations or other admissible evidence, no later than November 23, 20 09. Defendant may file a reply within 15 days after service of Plaintiff's response. The Motion to Dismiss will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court. (Response to Motion to Dismiss Deadline: 11/23/2009) (Scrivner, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA LAWONE WILKINSON, Plaintiff, vs. SERGEANT M. SLANKARD, et al. Defendants. ) ) ) ) ) ) ) ) ) )

No. 1:08-CV-1494-CKJ ORDER

Defendant Sergeant M. Slankard has filed a Motion to Dismiss (Doc. #14) pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to exhaust prison administrative remedies as required by 42 U.S.C. § 1997e(a). NOTICE--WARNING TO PLAINTIFF THIS NOTICE IS REQUIRED TO BE GIVEN TO YOU BY THE COURT1 Defendant's Motion to Dismiss seeks to have your case dismissed for failure to exhaust prison administrative remedies as required by 42 U.S.C. § 1997e(a). A motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure will, if granted, end your case. When deciding a motion to dismiss for failure to exhaust, the Court may consider evidence beyond your complaint, including sworn declarations and other admissible documentary evidence. Moreover, if Defendant produces admissible evidence demonstrating that you failed to exhaust available administrative remedies, your complaint will be dismissed without prejudice unless your response to Defendant's Motion includes admissible

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

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evidence sufficient to show that you exhausted all available administrative remedies or that no administrative remedies were available to you. Types of admissible evidence may include copies of your grievances, grievance responses and sworn declarations. Additionally, the Court advises Plaintiff and Defendant that the filing deadlines set forth in L.R. 78-230(m) are superceded as follows: Any opposition to a disposive motion shall be filed within 30 days, plus 3 days for mailing, after the date of service of the dispositive motion. Additionally, any reply shall be filed within 15 days, plus 3 days for mailing, after the date of service of the opposition. The Court also advises Plaintiff and Defendant that, unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a reply including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. Attachments shall exclude materials extraneous to genuine issues of material fact or law. Plaintiff is advised that non-compliance or failure to file an opposition may be deemed a consent to the granting of the motion and the Court may dispose of the motion summarily. See generally L.R. 78-230(m). Therefore, Plaintiff is advised that you must timely respond to all motions. You have thirty-three (33) days from October 19, 2009 (the filing date of the Motion to Dismiss) to respond to the Motion to Dismiss. If you do not respond to the Motion, your failure to respond can be viewed as you agreeing to the Court granting the Motion. If that occurs, those claims addressed in the Motion will be dismissed and there will be no trial on those claims. See Brydges v. Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam). IT IS ORDERED that Plaintiff must file a response to Defendant's Motion to Dismiss, together with copies of grievances, sworn declarations or other admissible evidence, no later than November 23, 2009. IT IS FURTHER ORDERED that Defendant may file a reply within 15 days after service of Plaintiff's response. -2-

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IT IS FURTHER ORDERED that the Motion to Dismiss will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court. DATED this 20th day of October, 2009.

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