Jones v. Swingle et al

Filing 97

ORDER (and Wyatt Notice) signed by Magistrate Judge Edmund F. Brennan on 4/4/2013 ORDERING that plaintiff's opposition to defendants' 95 motion to dismiss within 21 days, and that defendants' reply, if any, 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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MALIK JONES,
Plaintiff,

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No. 2:09-cv-0619 GEB EFB P

vs.
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SWINGLE, et al.,
Defendants.

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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. On March 28, 2013, defendants filed a motion to dismiss for failure to exhaust

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administrative remedies. Dckt. No. 95. Defendants’ motion did not include a notice to plaintiff

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informing him of the requirements for opposing a motion to dismiss for failure to exhaust

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available administrative remedies. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Stratton v.

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Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.15

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(9th Cir. 2003). Accordingly, the court hereby provides plaintiff with the requisite notice in the

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attached “Wyatt Notice.”

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As plaintiff has now received the notice required by Woods, IT IS HEREBY ORDERED

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that plaintiff’s opposition to defendants’ motion to dismiss is due within 21 days of the date of

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this order, and that defendants’ reply, if any, is due within fourteen days thereafter.

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DATED: April 4, 2013.

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Wyatt Notice to Plaintiff

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This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely

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and adequate notice of what is required” to oppose a motion to dismiss for failure to exhaust

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administrative remedies. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Wyatt v. Terhune,

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315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003). The court requires that you be provided with

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this notice regarding the requirements for opposing a motion to dismiss for failure to exhaust

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administrative remedies.

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When a defendant moves to dismiss some or all of your claims for failure to exhaust

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administrative remedies, the defendant is requesting that the court dismiss claims for which you

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did not exhaust available administrative remedies. A “motion to dismiss for failure to exhaust

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administrative remedies is similar to a motion for a summary judgment in that the district court

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will consider materials beyond the pleadings.” Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir.

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2012). The defendant may submit affidavits or declarations under penalty of perjury and

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admissible documents in support of the motion.
To oppose the motion, you must submit proof of specific facts regarding the exhaustion

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of administrative remedies. To do this, you may refer to specific statements made in your

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complaint if you signed your complaint under penalty of perjury and if your complaint shows

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that you have personal knowledge of the matters stated. You may also submit declarations

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setting forth facts regarding exhaustion of your claims, as long as the person who signs the

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declaration has personal knowledge of the facts stated. You may also submit all or part of

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deposition transcripts, answers to interrogatories, admissions, and other authenticated

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documents. If you fail to contradict the defendant’s evidence with your own evidence, the court

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may accept the defendant’s evidence as the truth and grant the motion. If you do not respond to

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the motion, the court may consider your failure to act as a waiver of your opposition. See L.R.

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230(l).

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If the court grants the defendant’s motion, whether opposed or unopposed, your

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unexhausted claims will be dismissed. If all of your claims are unexhausted, your entire case

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will be over. If, however, you exhaust administrative remedies for your claims at a later date,

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you may raise those claims in a new action.

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