Bontemps v. Salinas et al

Filing 38

ORDER signed by Magistrate Judge Dale A. Drozd on 8/14/13 ORDERING that within 21 days of the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss.(Dillon, M)

(PC) Bontemps v. Salinas et al

Doc. 38

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Plaintiff,

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vs.

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No. 2:10-cv-2345 JAM DAD P

SALINAS, et al.,

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Defendants.

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ORDER
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On July 2, 2013, defendants filed a motion to dismiss pursuant to unenumerated

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Rule 12(b) of the Federal Rules of Civil Procedure due to plaintiff’s alleged failure to exhaust his

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administrative remedies prior to bringing suit as required. Plaintiff has not opposed the motion.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” On August 27, 2012, plaintiff was advised of the requirements

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for filing an opposition to the motion and that failure to oppose such a motion may be deemed a

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waiver of opposition to the motion.1

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Local Rule 110 provides that failure to comply with the Local Rules “may be

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grounds for imposition of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” In the order filed August 27, 2012, plaintiff was advised that

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failure to comply with the Local Rules may result in a recommendation that the action be

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dismissed.

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Good cause appearing, IT IS HEREBY ORDERED that, within twenty-one days

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of the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure

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to file an opposition will be deemed as a statement of non-opposition and shall result in a

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recommendation that this action be dismissed pursuant Federal Rule of Civil Procedure 41(b).

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DATED: August 14, 2013.

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DAD:9
bont2345.46

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The court has attached a copy of the Wyatt notice to this order to ensure that plaintiff
has “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, 684 F.3d 934 (9th Cir. 2012);
Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.14 (9th Cir. 2003).
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Wyatt Notice to Plaintiff
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.14 (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, 2012 WL 4094937, at *3 (9th

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Cir. Sept. 19, 2012). The defendant may submit affidavits or declarations under penalty of

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perjury and admissible documents in support of the motion.

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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 that

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

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

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

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transcripts, answers to interrogatories, admissions, and other authenticated documents. If you fail

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to contradict the defendant’s evidence with your own evidence, the court may accept the

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

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court may consider your failure to act as a waiver of your opposition. See L.R. 230(l).

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

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may raise those claims in a new action.

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