Law v. Aruther, et al

Filing 124

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/10/2012, ORDERING that the 121 findings and recommendations are VACATED; defendants' 106 motion to dismiss is DENIED without prejudice; within 30 days, defendants may re-file and re-ser ve their motion to dismiss, along with the Wyatt Notice; if defendants re-serve their motion, plaintiff may file and serve an amended opposition within 30 days, thereafter; if plaintiff amends the opposition, defendants amended reply due within 14 days thereafter. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CARLOS GILBERT LAW,

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Plaintiff,

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vs.

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No. 2:08-cv-0291 JAM EFB P

NORIEGA, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently pending are the undersigned’s findings and recommendations to

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resolve defendants’ December 6, 2011 motion to dismiss for failure to exhaust administrative

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remedies. In those findings and recommendations, the undersigned recommends that

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defendants’ motion be granted. However, in light of recent Ninth Circuit case authority and to

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ensure that plaintiff has “fair, timely and adequate notice” of what is required of him to oppose

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defendants’ motion, the court must vacate those findings and recommendations, and deny the

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motion without prejudice to its re-filing, and to concurrently serving plaintiff with notice of the

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requirements for opposing a motion to dismiss for failure to exhaust. See Woods v. Carey, ___

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F.3d ___, Nos. 09-15548, 09-16113, 2012 U.S. App. LEXIS 13779 (9th Cir. July 6, 2012) (“The

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only satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand and
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Wyatt is to provide such notice at the time that the relevant motions are filed.” (emphasis

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added)); Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state

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that the court has required that it be given and that it be set forth in a separate document that is

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served with the moving papers); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.15 (9th Cir. Cal.

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2003) (requiring Rand notice for motions to dismiss for failure to exhaust so that plaintiff has

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“fair notice of his opportunity to develop a record”).1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The June 26, 2012 findings and recommendations (Dckt. No. 121) are vacated.

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2. Defendants’ motion to dismiss (Dckt. No. 106) is denied without prejudice.

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3. Within thirty days of the date of this order, defendants may re-file and re-serve their

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motion to dismiss. Defendants must contemporaneously serve with the motion, but in a separate

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document, a copy of the attached “Wyatt Notice,”which provides plaintiff with notice of the

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requirements for opposing a motion for summary judgment. Failure to do so may constitute

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grounds for denial of the motion.

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4. If defendants re-serve their motion, plaintiff may thereafter file and serve an amended

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opposition within thirty days. If plaintiff fails to file an amended opposition, the court will

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consider his existing opposition in resolving defendants’ motion.

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5. If plaintiff files an amended opposition, defendants may thereafter file an amended

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reply within fourteen days.

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DATED: August 10, 2012.

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In an attempt to comply with Woods, defendants have filed and served a Wyatt notice.
Dckt. No. 123. However, as noted above, Woods requires that the notice be provided at the time
the motion is filed. Because over eight months have elapsed since the motion was filed, too
much time has elapsed for the current Wyatt notice to comply with Woods
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS GILBERT LAW,

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Plaintiff,

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vs.

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No. 2:08-cv-0291 JAM EFB P

NORIEGA, et al.,

WYATT NOTICE**

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Defendants.
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The court requires that you be provided with this notice regarding the requirements for
opposing a motion to dismiss for failure to exhaust administrative remedies.
When a defendant moves to dismiss some or all of your claims for failure to exhaust
administrative remedies, the defendant is requesting that the court dismiss claims for which you
did not exhaust available administrative remedies. The defendant may submit affidavits or
declarations under penalty of perjury and admissible documents in support of the motion.

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To oppose the motion, you may submit proof of specific facts regarding the exhaustion of
administrative remedies. To do this, you may refer to specific statements made in your complaint
if you signed your complaint under penalty of perjury and if your complaint shows that you have
personal knowledge of the matters stated. You may also submit declarations setting forth facts
regarding exhaustion of your claims, as long as the person who signs the declaration has personal
knowledge of the facts stated. You may also submit all or part of deposition transcripts, answers
to interrogatories, admissions, and other authenticated documents. If you fail to contradict the
defendant’s evidence with your own evidence, the court may accept the defendant’s evidence as
the truth and grant the motion. If you do not respond to the motion, the court may consider your
failure to act as a waiver of your opposition. See L.R. 230(l).
If the court grants the defendant’s motion, whether opposed or unopposed, your
unexhausted claims will be dismissed. If all of your claims are unexhausted, your entire case
will be over. If, however, you exhaust administrative remedies for your claims at a later date,
you may raise those claims in a new action.

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**

This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely
and adequate notice of what is required” to oppose a motion to dismiss for failure to exhaust
administrative remedies. See Woods v. Carey, __ F.3d __, Nos. 09-15548, 09-16113, 2012 U.S.
App. LEXIS 13779, at *1 (9th Cir. July 6, 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120
n.15 (9th Cir. Cal. 2003).