Villareal v. County of Fresno

Filing 15

Notice and Warning of Requirements for Opposing Defendant's Motion to Dismiss for Failure to Exhaust/ORDER, signed by Magistrate Judge Erica P. Grosjean on 2/1/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELAINE K. VILLAREAL,
Plaintiff,

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v.
COUNTY OF FRESNO,

1:15-cv-01410-EPG (PC)
NOTICE AND WARNING OF
REQUIREMENTS FOR OPPOSING
DEFENDANT’S MOTION TO DISMISS FOR
FAILURE TO EXHAUST
(ECF No. 12)

Defendant.

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Elaine K. Villareal (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. On January 31, 2017, Defendant filed a

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motion to dismiss this case under Rule 12(b)(6), for failure to exhaust administrative remedies.

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(ECF No. 12).

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Defendant has not provided Plaintiff with the requisite Notice and Warning, pursuant to

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the Ninth Circuit’s requirement in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), informing

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Plaintiff of her rights and responsibilities in opposing Defendant’s motion to dismiss for failure

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to exhaust. Therefore, the Court shall, by this order, provide Plaintiff with the requisite Notice

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and Warning. Defendant is advised that in the future it should routinely provide a Notice and

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Warning to a pro se plaintiff in a prisoner case when bringing a motion to dismiss or motion for

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summary judgment based on failure to exhaust administrative remedies before filing suit.

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Woods 684 F.3d at 940 (Counsel for defendants in prisoner civil rights cases should include in
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any motion to dismiss or a motion for summary judgment in a case where the plaintiff is not

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assisted by counsel a short and plain statement of the requirements needed to defeat a

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defendant's dispositive motion).

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NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING
DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST

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Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), the Court now hereby

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notifies Plaintiff of the following rights and requirements for opposing Defendant’s motion to

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dismiss for failure to exhaust. Woods, 684 F.3d 934 (Fair notice of the requirements needed to

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defeat a defendant’s motion to dismiss for failure to exhaust administrative remedies must be

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provided to a pro se prisoner litigant in a civil rights case).
NOTICE AND WARNING:

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Defendant has filed a motion to dismiss for failure to exhaust

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

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failure to exhaust administrative remedies is subject to a motion for

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summary judgment or, if a failure to exhaust is clear on the face of the

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complaint, a motion to dismiss under Rule 12(b)(6). Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014). “The motion to dismiss for failure to

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exhaust administrative remedies is similar to a motion for a summary

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judgment in that the district court will consider materials beyond the

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pleadings; the plaintiff has a ‘right to file counter-affidavits or other

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responsive evidentiary materials.’” Stratton v. Buck, 697 F.3d 1004, 1008

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(9th Cir. 2012), quoting Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998).

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If the Court determines that all of the claims are unexhausted, the

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case will be dismissed, which means Plaintiff=s case is over. If some of the

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claims are exhausted and some are unexhausted, the unexhausted claims

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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).

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A dismissal for failure to exhaust is without prejudice. Id.
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Unless otherwise ordered, all motions to dismiss shall be briefed

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pursuant to Local Rule 230(l). Plaintiff is required to file an opposition or a

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statement of non-opposition to Defendants’ motion to dismiss. Local Rule

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230(l).

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opposition to the motion, this action may be dismissed, with prejudice, for

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failure to prosecute. The opposition or statement of non-opposition must be

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filed not more than 21 days after the date of service of the motion. Id.

If Plaintiff fails to file an opposition or a statement of non-

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If responding to Defendant’s motion to dismiss for failure to exhaust

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

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complaint.

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specific facts in declaration(s) and/or by submitting other evidence

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regarding the exhaustion of administrative remedies. See Fed. R. Civ. P.

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43(c). Unsigned declarations will be stricken, and declarations not signed

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under penalty of perjury have no evidentiary value. If Plaintiff does not

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submit her own evidence in opposition, the Court may conclude that

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Plaintiff has not exhausted the administrative remedies and the case will be

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dismissed in whole or in part.

Instead, Plaintiff must oppose the motion by setting forth

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IT IS SO ORDERED.
Dated:

February 1, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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