Miles v. Cates et al

Filing 35

Amended Second Informational ORDER -Notice and Warning of Requirements for Opposing Defendants' Motion to Dismiss re 34 Motion, signed by Magistrate Judge Michael J. Seng on 07/30/2012. (21) Day Deadline(Martin-Gill, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

ANTHONY MILES,
Plaintiff,

10
11
12

CASE NO. 1:10-cv-2055-MJS
AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS

v.
MATTHEW CATE, et al.,

(ECF Nos. 25 & 34)
Defendants.

13

/
14
15

Plaintiff is proceeding pro se in this civil action. Defendants filed a motion to dismiss

16

for failure to exhaust on June 4, 2012, and pursuant to Woods v. Carey, Nos. 09-15548,

17

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

18

(9th Cir. 2003), the Court hereby notifies Plaintiff of the following rights and requirements

19

for opposing the motion:

20
21

1. Unless otherwise ordered, all motions to dismiss shall be briefed pursuant to
Local Rule 230(l).

22

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

23

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

24

Defendants’ motion to dismiss, but will be given leave to supplement his opposition if he

25

so wishes. Plaintiff’s supplemental opposition, if any, must be filed not more than 21 days

26

after the date of service of the order. Id.

27
28

3.

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

administrative remedies as to one or more claims in the complaint. The failure to exhaust
1

1

the administrative remedies is subject to an unenumerated Rule 12(b) motion to dismiss.

2

Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union,

3

837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure

4

to exhaust, the Court will look beyond the pleadings and decide disputed issues of fact.

5

Wyatt, 315 F.3d at 1119-20 (quoting Ritza, 837 F.2d at 368). If the Court concludes that

6

Plaintiff has not exhausted the administrative remedies, the unexhausted claims must be

7

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

8

of the claims are unexhausted, the case will be dismissed, which means Plaintiff’s case is

9

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

10

claims will be dismissed and the case will proceed forward only on the exhausted claims.

11

Jones v. Bock, 549 U.S. 199, 219-224, 127 S. Ct. 910, 923-26 (2007). A dismissal for

12

failure to exhaust is without prejudice. Wyatt, 315 F.3d at 1120.

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

of perjury have no evidentiary value.

22

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

23

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

24

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

25

default.

26

///

27

///

28

///
2

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

1
2

Informational Order to file his response to Defendants’ motion to dismiss.

3
4
5

IT IS SO ORDERED.

6

Dated:
ci4d6

July 30, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3