Butler v. Moon et al

Filing 35

AMENDED SECOND INFORMATIONAL ORDER - NOTICE and WARNING of Requirements For Opposing Defendant Moon's 24 Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 7/30/2012. Response to Motion to Dismiss Due Within Twenty-One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MAURICE F. BUTLER,
Plaintiff,

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CASE NO. 1:09-cv-2074-MJS
AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANT MOON’S MOTION TO
DISMISS

v.
JONG YEOUNG MOON, et al.,
Defendants.

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(ECF No. 24)
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Plaintiff Maurice F. Butler (“Plaintiff”) is proceeding pro se in this civil action.

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Defendant Moon filed a motion to dismiss for failure to exhaust on December 30, 2011.

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Pursuant to Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 262 6912 (9th Cir. Jul.

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6, 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the Court hereby notifies

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Plaintiff of the following rights and requirements for opposing the 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

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Defendant Moon’s motion to dismiss. Local Rule 230(l). Plaintiff has filed an opposition

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to Defendant Moon’s motion to dismiss, but will be given leave to supplement his

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opposition if he so wishes. Plaintiff’s supplemental opposition, if any, must be filed not

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more than 21 days after the date of service of this order. Id.

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3.

Defendant Moon has filed a motion to dismiss for failure to exhaust the

administrative remedies as to one or more claims in the First Amended Complaint. The
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failure to exhaust the administrative remedies is subject to an unenumerated Rule 12(b)

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motion to dismiss. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s &

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Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a

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motion to dismiss for failure to exhaust, the Court will look beyond the pleadings and

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decide disputed 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 administrative remedies,

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the unexhausted claims must be dismissed and the Court will grant the motion to dismiss.

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Wyatt, 315 F.3d at 1120. If all of the claims are unexhausted, the case will be dismissed,

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which means Plaintiff’s case is over. If some of the claims are exhausted and some are

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unexhausted, the unexhausted claims will be dismissed and the case will proceed forward

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only on the exhausted claims. Jones v. Bock, 549 U.S. 199, 219-224, 127 S. Ct. 910, 923-

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26 (2007). A dismissal for failure to exhaust is without prejudice. Wyatt, 315 F.3d at 1120.

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If responding to Defendant Moon’s unenumerated 12(b) motion to dismiss for failure

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to exhaust the administrative remedies, Plaintiff may not simply rely on allegations in the

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complaint. Instead, Plaintiff must oppose the motion by setting forth specific facts in

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declaration(s) and/or by submitting other evidence regarding the exhaustion of

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

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not submit his own evidence in opposition, the Court may conclude that Plaintiff has not

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exhausted the administrative remedies and the case will be dismissed in whole or in part.

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4. Unsigned declarations will be stricken, and declarations not signed under penalty

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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

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Procedure, or the Local Rules of the Eastern District of California may result in the

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imposition of sanctions including but not limited to dismissal of the action or entry of

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default.

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Plaintiff shall have twenty one (21) days after the date of service of this Second

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Informational Order to file his response to Defendant Moon’s motion to dismiss.

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IT IS SO ORDERED.

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Dated:
ci4d6

July 30, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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