West v. Federal Bureau of Prisons et al

Filing 69

Amended Second Informational ORDER - Notice And Warning Of Requirements For Opposing Defendant's Motion To Dismiss (Docs. 63 , 66 ), signed by Magistrate Judge Gerald B. Cohn on 10/3/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD A. WEST,

CASE NO. 1:09-CV-01277-LJO-GBC (PC)

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Plaintiff,

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

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v.
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FEDERAL BUREAU OF PRISONS, et al.,
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Docs. 63, 66
Defendants.

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/

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I. Procedural History

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On July 22, 2009, Plaintiff Gerald A. West, a federal prisoner proceeding pro se and in forma

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pauperis, filed a complaint against Defendants employed by the United States Penitentiary in

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Atwater, California (“USP Atwater”),1 pursuant to Bivens v. Six Unknown Named Agents of Federal

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Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1. On February 15, 2011, the Court dismissed

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certain claims and directed the action to proceed against Doe Defendants for Eighth Amendment

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failure to protect. Doc. 28. On May 3, 2011, the Court granted Plaintiff’s motion to conduct limited

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discovery, for the sole purpose of identifying Doe Defendants, and ordered Plaintiff to identify Doe

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Defendants within 120 days. Doc. 33. On July 26, 2011, the Court directed service of a subpoena to

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the warden of USP Atwater, for the limited discovery of identifying Doe Defendants. Doc. 45. On

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August 25, 2011, the Bureau of Prisons (“BOP”) submitted a response to Plaintiff’s subpoena. Doc.

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Plaintiff is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania.
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49. On March 7, 2012, Plaintiff filed his fourth amended complaint, identifying two of the three Doe

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Defendants. Doc. 56. On April 19, 2012, the District Judge adopted findings and recommendations,

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dismissing certain defendants, and referring this matter back to the Magistrate Judge to initiate

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service of process proceedings against Defendant M. McNease, for Eighth Amendment failure to

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protect. Doc. 59.

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On May 11, 2012, the Court issued a second informational order, advising Plaintiff that

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Defendant may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative

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remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt

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v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int’l Longshoremen’s &

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Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 63. On September

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13, 2012, Defendant filed a motion to dismiss for failure to exhaust administrative remedies. Doc.

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66.

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II. Woods v. Carey and Contemporaneous Notice

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On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for

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opposing a defendant’s motion to dismiss should be issued contemporaneously when a defendant

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files a motion to dismiss, as opposed to a year or more in advance. Woods v. Carey, 2012 WL

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2626912, at * 4 (9th Cir. Jul. 6, 2012). On May 11, 2012, this Court issued a second informational

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order, containing the notice and warning of requirements for opposing a defendant’s motion to

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dismiss to Plaintiff. Doc. 63. On September 13, 2012, Defendant filed a motion to dismiss. Doc. 66.

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In order to address the time delay between providing notice and the filing of defendant’s motion, the

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Court will issue this amended second informational order to Plaintiff, in accordance with Woods.

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III. Notice and Warning of Requirements for Opposing a Motion to Dismiss, for Failure to

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Exhaust Administrative Remedies, Pursuant to Woods and Wyatt

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Pursuant to Woods and Wyatt, 315 F.3d at 1108, the Court hereby notifies Plaintiff of the

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following rights and requirements for opposing a motion to dismiss for failure to exhaust

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administrative remedies:

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//

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//
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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 a defendant’s

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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. Defendant(s) 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 Plaintiff’s

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

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will be dismissed and the case will proceed forward only on the exhausted claims. Jones v. Bock, 549

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U.S. 199, 219-224 (2007). A dismissal for failure to exhaust is without prejudice. Wyatt, 315 F.3d

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at 1120.

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In responding to a defendant’s 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
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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.

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Dated:
7j8cce

October 3, 2012
UNITED STATES MAGISTRATE JUDGE

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