Harvey v. Ayala et al
Filing
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AMENDED SECOND INFORMATIONAL ORDER - NOTICE and WARNING of Requirements For Opposing Defendants' 18 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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QUILLIE L. HARVEY,
Plaintiff,
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CASE NO. 1:10-cv-2343-MJS
AMENDED SECOND INFORMATIONAL
ORDER - NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS
v.
A. AYALA, et al.,
(ECF No. 18)
Defendants.
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Plaintiff Quillie L. Harvey (“Plaintiff”) is proceeding pro se in this civil action.
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Defendants filed a motion to dismiss for failure to exhaust on June 13, 2012, and pursuant
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to Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 262 6912 (9th Cir. Jul. 6, 2012)
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and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the Court hereby notifies Plaintiff of
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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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Defendants’ motion to dismiss. Local Rule 230(l). Plaintiff has filed an opposition to
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Defendants’ motion to dismiss, but will be given leave to supplement his opposition if he
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so wishes. Plaintiff’s supplemental opposition, if any, must be filed not more than 21 days
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after the date of service of this order. 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 failure to exhaust
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the administrative remedies is subject to an unenumerated Rule 12(b) motion to dismiss.
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Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union,
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837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure
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to exhaust, the Court will look beyond the pleadings and decide disputed issues of fact.
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Wyatt, 315 F.3d at 1119-20 (quoting Ritza, 837 F.2d at 368). If the Court concludes that
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Plaintiff has not exhausted the administrative remedies, the unexhausted claims must be
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dismissed and 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 Plaintiff’s case is
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over. If some of the claims are exhausted and some are unexhausted, the unexhausted
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claims will be dismissed and the case will proceed forward only on the exhausted claims.
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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
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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 supplemental response to Defendants’ motion to dismiss.
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IT IS SO ORDERED.
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Dated:
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July 30, 2012
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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