Winston v. Tilton et al

Filing 19

ORDER signed by Circuit Judge Marsha S. Berzon on 7/1/10 ORDERING that Pltf must file a response to Defts' 18 Motion to Dismiss within 21 days of the date of this order; Defts' reply, if any, due within 7 days thereafter. The motion will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court. (Owen, K)

( P C ) Winston v. Tilton, et al

D o c . 19

1 2 3 4 5 6 7 8 9 D O U G L A S J. WINSTON, 10 Plaintiff, 11 vs. 12 13 14 D e f e n d a n ts . 15 16 O n July 1, 2010, Defendant Sisto and Singh filed an unenumerated motion to dismiss 17 P la in tif f 's Complaint under Federal Rule of Civil Procedure 12(b) on the ground that 18 P lain tiff failed to exhaust the available administrative remedies before filing his complaint. 19 (D k t. # 18). 20 N O T I C E TO PLAINTIFF 21 D e f e n d a n ts ' motion to dismiss seeks to have your case dismissed for failure to exhaust 22 p r is o n administrative remedies as required by 42 U.S.C. § 1997e(a). A motion to dismiss 23 u n d e r Rule 12(b) of the Federal Rules of Civil Procedure will, if granted, end your case. 24 P lain tiff is advised of the following specific provisions of Local Rule of Civil Procedure 25 2 3 0 ( l) : 26 27 28 (l) Motions in Prisoner Actions. All motions, except motions to dismiss for la c k of prosecution, filed in actions wherein one party is incarcerated and p ro c e ed in g in propria persona, shall be submitted upon the record without oral a rg u m e n t unless otherwise ordered by the Court. Such motions need not be J A M E S TILTON, D.K. SISTO, S IN G H , and T. SEQUIRA, ) ) ) ) ) ) ) V.) ) ) ) ) ) C a s e No. 2:08-cv-3140-MSB ORDER IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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n o t ic e d on the motion calendar. Opposition, if any, to the granting of the m o tio n shall be served and filed by the responding party not more than tw e n ty-o n e (21),days after the date of service of the motion. A responding p a rty who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question. F a ilu re of the responding party to file an opposition or to file a statement of no o p p o s itio n may be deemed a waiver of any opposition to the granting of the m o tio n and may result in the imposition of sanctions. The moving party may, n o t more than seven (7) days after the opposition is served, serve and file a re p ly to the opposition. All such motions will be deemed submitted tw e n ty-e ig h t (28) days after the service of the motion or when the reply is f ile d , whichever comes first. See L.R. 135. W h e n deciding a motion to dismiss for failure to exhaust, the Court may consider

8 e v id e n c e beyond your complaint, including sworn declarations and other admissible 9 d o c u m e n t a ry evidence. See Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). 10 P la in tif f is therefore further advised that if the defendants produce admissible evidence 11 d e m o n s tra tin g that you failed to exhaust administrative remedies, your complaint will be 12 d i sm is s e d without prejudice unless your response to the defendants' motion to dismiss 13 in c lu d e s admissible evidence sufficient to show that you exhausted all available 14 a d m i n is tra tiv e remedies or that no administrative remedies were available to you. Types of 15 ad m issib le evidence may include copies of your grievances, grievance responses and sworn 16 d e c l a ra tio n s . 17 Y o u must timely respond to motions filed by the defendants. If you fail to respond 18 to Defendants' motion to dismiss, the Court may construe such failure as a consent to the 19 g ra n tin g of that motion without further notice, and judgment may be entered dismissing this 20 a c tio n without prejudice. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); Local Rule 21 2 3 0 ( l) . 22 I T IS HEREBY ORDERED that Plaintiff must file a response to Defendants' motion 23 to dismiss, together with copies of grievances, sworn declarations or other admissible 24 ev id en ce , within 21 days of the date of this order. Failure to do so will result in the Court 25 g ra n tin g the motion. 26 IT IS FURTHER ORDERED that Defendants may file a reply within 7 days after 27 s e rv ic e of Plaintiff's response. 28 -2-

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I T IS FURTHER ORDERED that the motion will be deemed ready for decision w ith o u t oral argument on the day following the date set for filing a reply unless otherwise o rd e re d by the Court.

D A T E D this 1st day of July, 2010.

/s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation

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