Powell v. Madden, et al.

Filing 51

ORDER re 44 MOTION to DISMISS signed by Chief Judge Ralph R. Beistline on 3/10/2014. (Lundstrom, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TONY EDWARD POWELL,
Case No. 1:13-cv-00057-RRB
Plaintiff,
ORDER REGARDING
MOTION AT DOCKET 44

vs.
MADDEN, et al.,
Defendants.

At Docket 44 Defendants a Motion to Dismiss the Eighth Amendment Claim for
failure to exhaust on February 28, 2014. Plaintiff is proceeding pro se in this civil action.
The Court hereby notifies Plaintiff of the following rights and requirements for opposing the
motion:1
1.

Unless otherwise ordered, all motions to dismiss must be briefed pursuant to

Local Rule 230(l).
2.

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

Defendants’ motion to dismiss.2 If Plaintiff fails to file an opposition or a statement of nonopposition to the motion, the motion may be granted without further notice. The opposition

1

See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Wyatt v. Terhune, 315
F.3d 1108 (9th Cir. 2003).
2

Local Rule 230(l).

ORDER REGARDING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 1

or statement of non-opposition must be filed not more than 21 days after the date of service
of the motion.3
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
the administrative remedies is subject to an unenumerated Rule 12(b) motion to dismiss.4
In deciding a motion to dismiss for failure to exhaust, the Court will look beyond the
pleadings and decide disputed issues of fact.5 If the Court concludes that Plaintiff has not
exhausted the administrative remedies, the unexhausted claims must be dismissed and the
Court will grant the motion to dismiss.6 If all of the claims are unexhausted, the case will
be dismissed, which means Plaintiff’s case is over. If some of the claims are exhausted and
some are unexhausted, the unexhausted claims will be dismissed and the case will proceed
forward only on the exhausted claims.7 A dismissal for failure to exhaust is without
prejudice.8
If responding to Defendants’ unenumerated 12(b) motion to dismiss for failure to
exhaust the administrative remedies, Plaintiff may not simply rely on allegations in the
complaint. Instead, Plaintiff must oppose the motion by setting forth specific facts in

3

Id.

4

Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s &
Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)).
5

Wyatt, 315 F.3d at 1119–20 (quoting Ritza, 837 F.2d at 368).

6

Id. at 1120.

7

Jones v. Bock, 549 U.S. 199, 219-224 (2007).

8

Wyatt, 315 F.3d at 1120.

ORDER REGARDING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 2

declaration(s) and/or by submitting other evidence regarding the exhaustion of
administrative remedies.9 If Plaintiff does not submit his own evidence in opposition, the
Court may conclude that Plaintiff has not exhausted the administrative remedies and the
case will be dismissed.
4.

Unsigned declarations will be stricken, and declarations not signed under

penalty of perjury have no evidentiary value.
5.

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

Procedure, or the Local Rules of the Eastern District of California may result in the
imposition of sanctions including but not limited to dismissal of the action or entry of default.
IT IS SO ORDERED this 10th day of March, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

9

See Fed. R. Civ. P. 43(c); Ritza, 837 F.2d at 369.

ORDER REGARDING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 3