Huynh v. Hubbard et al

Filing 29

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/1/12 ORDERING that plaintiff has now received the notice required under Woods v. Carey, No. 09- 15548 (9th Cir. July 6, 2012). If plaintiff requires an extension of time to prepare his opposition to defendants motion to dismiss, he may so request.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAI HUYNH,

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Plaintiff,

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vs.

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No. 2:09-cv-1979 CKD P

CALLISON, et al.,

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Defendants.

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ORDER
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Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, No. 09-15548

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(9th Cir. July 6, 2012), the court hereby reminds plaintiff of the following requirements for

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opposing the motion to dismiss for failure to exhaust administrative remedies filed by defendants

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on July 23, 2012.1 (Dkt. No. 28.)

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Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), the court

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hereby informs plaintiff of the following requirements for opposing a motion to dismiss for

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failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b). Such a motion is a

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request that the court dismiss without prejudice any unexhausted claims. The moving party may

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Defendants also argue that the Second Amended Complaint fails to state a claim upon
which relief may be granted. Defendants provided Woods notice in their Notice of Motion (Dkt.
No. 23 at 2-3), and the court provides this independent notice in an abundance of caution.
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submit affidavits or declarations under penalty of perjury and admissible documents to support

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the motion to dismiss. To oppose the motion, plaintiff may likewise file declarations under

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penalty of perjury and admissible documents. Plaintiff may rely on plaintiff’s statements made

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under penalty of perjury in the complaint if the complaint shows that plaintiff has personal

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knowledge of the matters stated and plaintiff specifies the parts of the complaint on which

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plaintiff relies. Plaintiff may also rely on one or more affidavits or declarations sworn to by other

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persons who have personal knowledge of relevant matters. In addition, plaintiff may rely on

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written records, but plaintiff must prove that the records are what plaintiff asserts they are. If

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plaintiff fails to contradict defendant’s evidence with admissible evidence, the court may rely on

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defendant’s evidence. In the event both sides submit matters outside of the pleadings, the court

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may look beyond the pleadings and decide disputed issues of fact. If plaintiff does not file a

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written opposition to the motion, the court may consider the failure to act as a waiver of

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opposition to the motion. See L.R. 230(l). If the court grants the motion to dismiss, whether

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opposed or unopposed, plaintiff’s unexhausted claims will be dismissed without prejudice.

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Plaintiff has now received the notice required under Woods v. Carey, No. 09-

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15548 (9th Cir. July 6, 2012). If plaintiff requires an extension of time to prepare his opposition

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to defendants’ motion to dismiss, he may so request.

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IT IS SO ORDERED.

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Dated: August 1, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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huyn1979.not

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