O'Leary v. California Department of Corrections et al

Filing 56

[DISREGARD- DUPLICATE of 55 Order] DISORDER signed by Magistrate Judge Carolyn K. Delaney on 7/11/2012 PROVIDING the Plaintiff 21 days to file additional evidentiary submissions, if he wishes, re 48 Motion to Dismiss Second Amended Complaint. (Michel, G) Modified on 7/12/2012 (Donati, J).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY FRANCIS O’LEARY,

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Plaintiff,

No. 2:09-cv-2601 GEB CKD P

Defendant.

ORDER

vs.
CLARK

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Plaintiff is proceeding pro se with a complaint pursuant to 42 U.S.C. § 1983.

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This court issued findings and recommendations on June 22, 2012 which recommended that the

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second amended complaint be dismissed for plaintiff’s failure to exhaust administrative

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remedies. (See Dkt. No. 53.) Plaintiff thereafter filed objections to the findings and

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recommendations. Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, Nos. 09-

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15548, 09-16113, – F.3d –, 2012 WL 2626912 (9th Cir. July 6, 2012), the court hereby reminds

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plaintiff of the following requirements for opposing the motion to dismiss for failure to exhaust

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administrative remedies made by defendant pursuant to non-enumerated Rule 12(b) of the

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Federal Rules of Civil Procedure which was filed by defendant on February 13, 2012.1 Such a

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motion is a request for dismissal of unexhausted claims without prejudice. The defendant may

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submit affidavits or declarations under penalty of perjury and admissible documentation to

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

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under penalty of perjury and admissible documentation. Plaintiff may rely upon statements made

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

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knowledge of the matters state and the plaintiff calls to the court’s attention those parts of the

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complaint upon which plaintiff relies. Plaintiff may serve and file one or more affidavits or

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declarations by other persons who have personal knowledge of relevant matters. Plaintiff may

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also rely upon written records, but plaintiff must prove that the records are what plaintiff claims

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they are. If plaintiff fails to contradict defendant’s evidence with admissible evidence, the court

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may rely on the defendant’s evidence. In the event both sides submit matters outside the

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pleadings, the court may look beyond the pleadings and decide disputed issues of fact. If

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plaintiff does not serve and file a written opposition to the motion, the court may consider the

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failure to act as a waiver of opposition to the defendant’s motion. If the defendant’s motion to

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dismiss, whether opposed or unopposed, is granted, plaintiff’s unexhausted claims will be

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dismissed without prejudice.

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Unsigned affidavits or declarations will be stricken, and affidavits or declarations
not signed under penalty of perjury have no evidentiary value.

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Plaintiff will be provided twenty-one (21) days to file additional evidentiary

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materials if he wishes regarding the motion to dismiss for failure to exhaust administrative

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remedies.

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Plaintiff was also advised of these requirements on December 12, 2011. (See Dkt. No.

42.)
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Accordingly, IT IS HEREBY ORDERED that plaintiff shall have twenty-one (21)

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days from the date of this order to file additional evidentiary submissions if he wishes regarding

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the motion to dismiss, but it is not required. No extensions of time will be given.

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Dated: July 11, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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