Villareal v. County of Fresno
Filing
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ORDER Converting 12 Motion to Dismiss Into a Motion for Summary Judgment and Allowing Both Parties to Submit Additional Evidence, signed by Magistrate Judge Erica P. Grosjean on 4/10/17. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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Case No. 1:15-cv-01410-EPG (PC)
ELAINE K. VILLAREAL,
ORDER CONVERTING MOTION TO
DISMISS INTO A MOTION FOR
SUMMARY JUDGMENT AND
ALLOWING BOTH PARTIES TO SUBMIT
ADDITIONAL EVIDENCE
v.
COUNTY OF FRESNO,
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Defendant.
(ECF NO. 12)
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I.
Elaine K. Villareal (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 17, 2015,
Plaintiff filed the complaint commencing this action.
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(ECF No. 1).
In an order dated
November 8, 2016, this Court allowed Plaintiff’s action to proceed against the County of
Fresno on a claim for violation of the Eighth Amendment based on unconstitutional conditions
of confinement. (ECF No. 7).
On January 31, 2017, Defendant County of Fresno filed a motion to dismiss on the
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BACKGROUND
ground that Plaintiff failed to properly exhaust her administrative remedies. (ECF No. 12).
Plaintiff filed an opposition, (ECF No. 19), and Defendant filed a reply (ECF No. 20). The
Court heard oral arguments on April 7, 2017, and took the matter under advisement. (ECF No.
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“Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead
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and prove.’ Jones v. Bock, 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In
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the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may
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move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving
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failure to exhaust in order to carry their burden.” Albino v. Baca, 747 F.3d 1162, 1166 (9th
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Cir. 2014).
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Defendant’s motion includes evidence beyond the pleadings in support of the position
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that Plaintiff failed to exhaust her administrative remedies.
At oral argument, Plaintiff
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discussed additional evidence she believes is relevant to the issue, which also went beyond the
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information in her complaint.
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Accordingly, the Court will convert Defendant’s motion to dismiss into a motion for
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summary judgment. Both parties will be given twenty-eight days to file additional evidence if
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they choose to do so, and fourteen days from receipt of the opposing parties’ evidence to file a
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reply and objections to the opposing parties’ evidence, if they choose. Once these deadlines
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have passed, the Court will either rule on the motion (directly or by issuing findings and
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recommendations) based on the record or order and evidentiary hearing to resolve disputed
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issues of fact.
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The Court notes that, as discovery has not yet been opened, if any party needs to
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conduct discovery in order to gather evidence in relation to the motion for summary judgment,
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that party will need to file a motion to allow discovery.
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NOTICE AND WARNING OF REQUIREMENTS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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Pursuant to Rand v. Rowland, 154 F.3d 952, the Court hereby notifies Plaintiff of the
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FOR
OPPOSING
following rights and requirements for opposing Defendant’s motion for summary judgment.
NOTICE AND WARNING:
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The Court has converted Defendant’s motion to dismiss into a
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motion for summary judgment. The motion for summary judgment seeks
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to have your case dismissed. A motion for summary judgment under Rule
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56 of the Federal Rules of Civil Procedure will, if granted, end your case.
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Rule 56 tells you what you must do in order to oppose a motion for
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summary judgment. Generally, summary judgment must be granted when
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there is no genuine issue of material fact— that is, if there is no real dispute
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about any fact that would affect the result of your case, the party who asked
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for summary judgment is entitled to judgment as a matter of law, which
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will end your case.
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summary judgment that is properly supported by declarations (or other
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sworn testimony), you cannot simply rely on what your complaint says.
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Instead, you must set out specific facts in declarations, depositions, answers
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to interrogatories, or authenticated documents, as provided in Rule [56(c)],1
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that contradict the facts shown in Defendant’s declarations and documents
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and show that there is a genuine issue of material fact for trial. If you do
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not submit your own evidence in opposition, summary judgment, if
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appropriate, may be entered against you. If summary judgment is granted,
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your case will be dismissed and there will be no trial.
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When a party you are suing makes a motion for
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EASTERN DISTRICT OF CALIFORNIA LOCAL RULE
REQUIREMENTS
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You are responsible for filing all evidentiary documents cited in the
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opposing papers. Local Rule 260(b). If additional discovery is needed to
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oppose summary judgment, Local Rule 260(b) requires you to “provide a
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specification of the particular facts on which discovery is to be had or the
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issues on which discovery is necessary.” See also Fed. R. Civ. P. 56(d).
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Accordingly, based on the foregoing, IT IS HEREBY ORDERED THAT:
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1. Defendant’s motion to dismiss is converted into a motion for summary
judgment; and
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The substance of Rule 56(e) from the 1998 version, when Rand was decided, has been
reorganized and renumbered with the current version of Rule 56(c).
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2. Both parties have twenty-eight days from the date of service of this order to file
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additional evidence in relation to the motion for summary judgment, and
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fourteen days from the date of service of the opposing parties’ evidence to file a
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reply and objections to the opposing parties’ evidence.
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IT IS SO ORDERED.
Dated:
April 10, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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