Lawson v. Youngblood

Filing 45

ORDER Granting Plaintiff's 43 Urgent Motion for Extension of Time to File Response to Motion to Dismiss; Notice and Warning of Requirement for Opposing Defendants' Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 10/4/12. Twenty-One Day Deadline to File Response and Correction to Current Address. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ALAN LAWSON,

CASE No. 1:09-cv-00992-LJO-MJS (PC)
ORDER GRANTING PLAINTIFF’S
URGENT MOTION FOR EXTENSION
OF TIME TO FILE RESPONSE TO
MOTION TO DISMISS

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Plaintiff,
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vs.
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(ECF No. 43)
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DONALD YOUNGBLOOD, et al.,
TWENTY-ONE (21) DAY DEADLINE

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Defendants.

NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS

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_____________________________/

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I.

PROCEDURAL HISTORY
Plaintiff Richard Alan Lawson (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action on June 8, 2009 pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to the Magistrate Judge jurisdiction. (ECF No.

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5.) Defendants Embrey, Laird and Sawaske have declined Magistrate Judge

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jurisdiction. (ECF No. 32.)
This matter proceeds on Plaintiff’s Second Amended Complaint claims for

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inadequate medical care against Defendants Laird, Chang, Sawaske, Embrey, and

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Clemente, and for excessive force under the Eighth Amendment against Defendant

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Laird. Defendants Laird, Sawaske and Embrey filed an Answer on August 1, 2012

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(ECF No. 29) and a Motion to Dismiss for Failure to Exhaust Administrative Remedies

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on September 6, 2012. (ECF No. 37.) On October 1, 2012, Plaintiff filed an Urgent

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Motion to File Responsive Pleadings (ECF No. 43), seeking an extension of time to

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oppose Defendants Motion to Dismiss. On October 1, 2012, Defendants Laird,

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Sawaske and Embrey filed a Response to Plaintiff’s Motion (ECF No. 44), stating their

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non-opposition to an extension of time. The Motion is now before the Court.

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II.

EXTENSION OF TIME
The Court finds that Plaintiff's motion for extension of time is supported by good

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cause and unopposed by Defendants. Plaintiff shall within twenty-one (21) days

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following service of this order file his response to Defendants’ Motion to Dismiss.

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III.

CURRENT ADDRESS

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Plaintiff in his Motion appears to take the position that his current address of

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record, California medical Facility, P.O. Box 2500, Vacaville, CA 95696-2500, is not

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correct. Plaintiff is required to maintain a current address with the Court. Local Rule

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183(b) provides that:

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Address Changes. A party appearing in propria persona shall keep the Court
and opposing parties advised as to his or her current address. If mail directed
to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal
Service, and if such plaintiff fails to notify the Court and opposing parties within
sixty-three (63) days thereafter of a current address, the Court may dismiss the
action without prejudice for failure to prosecute.

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Plaintiff shall file any necessary correction of his current address within twentyone (21) days of service of this order.

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IV.

NOTICE AND WARNING
Pursuant to Woods v. Carey, Nos. 09–15548, 09–16113, 2012 WL 2626912

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(9th Cir. Jul.6, 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

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Motion to Dismiss:

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pursuant to Local Rule 230(l).

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Unless otherwise ordered, all motions to dismiss shall be briefed

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Plaintiff is required to file an opposition or a statement of non-opposition

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to Defendants' motion to dismiss. Local Rule 230(l). If Plaintiff fails to file

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an opposition or a statement of non-opposition to the motion, this action

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may be dismissed, with prejudice, for failure to prosecute. Generally the

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opposition or statement of non-opposition must be filed not more than

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twenty-one (21) days after the date of service of the motion. Id.

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3.

Defendants have filed a motion to dismiss for failure to exhaust the

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administrative remedies as to one or more claims in the Complaint. The

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failure to exhaust the administrative remedies is subject to an

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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

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365, 368 (9th Cir.1988)). In deciding a motion to dismiss for failure to

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exhaust, the Court will look beyond the pleadings and decide disputed

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issues of fact. Wyatt, 315 F.3d at 1119–20 (quoting Ritza, 837 F.2d at

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368). If the Court concludes that Plaintiff has not exhausted the

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administrative remedies, the unexhausted claims must be dismissed and

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the Court will grant the motion to dismiss. Wyatt, 315 F.3d at 1120. If all

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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

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are unexhausted, the unexhausted claims will be dismissed and the

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case will proceed forward only on the exhausted claims. Jones v. Bock,

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549 U.S. 199, 219–224 (2007). A dismissal for failure to exhaust is

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without prejudice. Wyatt, 315 F.3d at 1120.
4.

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If responding to Defendants' unenumerated 12(b) motion to dismiss for

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failure to exhaust the administrative remedies, Plaintiff may not simply

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rely on allegations in the complaint. Instead, Plaintiff must oppose the

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motion by setting forth specific facts in declaration(s) and/or by

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submitting other evidence regarding the exhaustion of administrative

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remedies. See Fed.R.Civ.P. 43(c); Ritza, 837 F.2d at 369. If Plaintiff

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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

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will be dismissed in whole or in part.
5.

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

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6.

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The failure of any party to comply with this order, the Federal Rules of

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Civil Procedure, or the Local Rules of the Eastern District of California

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may result in the imposition of sanctions including but not limited to

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dismissal of the action or entry of default.

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V.

ORDER

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Accordingly, it is hereby ordered that:

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1.

Plaintiff’s Urgent Motion to File Responsive Pleadings (ECF No. 43) is

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granted such that Plaintiff shall within twenty-one (21) days following

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service of this order file his response to Defendants’ Motion to Dismiss.

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2.

Plaintiff shall file any necessary correction of his current address within
twenty-one (21) days of service of this order.

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3.

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The Clerk is directed to serve this order on Plaintiff at the following

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addresses:

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Richard Lawson
26627 Shakespeare Lane
Stevenson Ranch, CA 91381.

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Richard Lawson
CDC#D30022
California Medical Facility
P.O. Box 2500
Vacaville, CA 95696-2500.

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IT IS SO ORDERED.
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Dated:
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October 4, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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