Gonzalez v. Adams et al

Filing 30

AMENDED SECOND INFORMATIONAL ORDER - Notice and Warning of Requiremets for Opposing Defendants' 29 MOTION to DISMISS signed by Magistrate Judge Sheila K. Oberto on 07/10/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EVERETT GALINDO GONZALEZ,

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Plaintiff,

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CASE NO. 1:09-cv-01284-SKO PC
AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS

v.
DERRAL G. ADAMS, et al.,

(Doc. 29)
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Defendants.
/

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Plaintiff is proceeding pro se in this civil action. On July 9, 2012, Defendants filed a motion

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to dismiss based in part on the failure to exhaust, and pursuant to Woods v. Carey, Nos. 09-15548,

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09-16113, 2012 WL 262 6912 (9th Cir. Jul. 6, 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.

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2003), the Court hereby notifies Plaintiff of the following rights and requirements for opposing the

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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 or select claims may be

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dismissed.

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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.

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Dated:
i0d3h8

July 10, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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