Samuels v. Woods, et al

Filing 52

ORDER signed by Magistrate Judge Craig M. Kellison on 7/27/2012 ORDERING that plaintiff may file separate supplemental oppositions to defendants' 21 motion to dismiss and 41 motion for summary judgment within 30 days; and defendants may file separate supplemental replies within 15 days after service of any supplemental oppositions. (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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ROBERT E. SAMUELS,

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Plaintiff,

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vs.

ORDER

WOODS, et al.,

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Defendants.

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No. 2:10-CV-2689-LKK-CMK-P

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983.

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On April 21, 2011, defendants filed a motion to dismiss. Defendants also filed a

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motion for summary judgment on March 8, 2012. Those motions were not, however,

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accompanied by a contemporaneous notice to plaintiff advising him as to his obligations in

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opposing such motions. The court will now provide those notices and also provide plaintiff an

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opportunity to file supplemental oppositions in light of this notice. Defendants will also be

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permitted to file supplemental replies. If no supplemental oppositions are filed within the time

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provided herein, the matters will stand submitted on the current record.

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

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is advised of the following requirements for opposing a 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: Such a motion is a request for dismissal of unexhausted

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claims without prejudice.1 The defendant may submit affidavits or declarations under penalty of

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perjury and admissible documentation to support the motion to dismiss. To oppose the motion,

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plaintiff may likewise file declarations under penalty of perjury and admissible documentation.

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Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the

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complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to

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the court’s attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve

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and file one or more affidavits or declarations by other persons who have personal knowledge of

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relevant matters. Plaintiff may also rely upon written records, but plaintiff must prove that the

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records are what plaintiff claims they are. If plaintiff fails to contradict defendant’s evidence

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with admissible evidence, the court may rely on the defendant’s evidence. In the event both sides

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submit matters outside the pleadings, the court may look beyond the pleadings and decide

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disputed issues of fact. If plaintiff does not serve and file a written opposition to the motion, the

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

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defendant’s motion to dismiss, whether opposed or unopposed, is granted, plaintiff’s

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unexhausted claims will be dismissed without prejudice.

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Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following

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requirements for opposing a motion for summary judgment made by defendants pursuant to Rule

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56 of the Federal Rules of Civil Procedure: Such a motion is a request for an order for judgment

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in favor of defendants without trial. A defendant’s motion for summary judgment will set forth

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Though defendants’ motion to dismiss is brought under Rule 12(b)(6) for failure
to state a claim, this notice is nonetheless given in an abundance of caution.
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the facts that the defendants contend are not reasonably subject to dispute and that entitle the

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defendants to judgment. To oppose a motion for summary judgment, plaintiff must show proof

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of his or her claims. Plaintiff may do this in one or more of the following ways. Plaintiff may

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rely upon statements made under the penalty of perjury in the complaint if the complaint shows

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that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court’s

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attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one

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or more affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff’s

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claims; the person who signs an affidavit or declaration must have personal knowledge of the

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facts stated. Plaintiff may rely upon written records, but plaintiff must prove that the records are

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what plaintiff claims they are. Plaintiff may rely upon all or any part of the transcript of one or

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more depositions, answers to interrogatories, or admissions obtained in this proceeding. If

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plaintiff fails to contradict the defendants’ evidence with counteraffidavits or other admissible

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evidence, the defendants’ evidence may be taken as the truth and the defendants’ motion for

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summary judgment granted. If there is some good reason why such facts are not available to

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plaintiff when required to oppose a motion for summary judgment, the court will consider a

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request to postpone considering the defendants’ motion. If plaintiff does not serve and file a

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written opposition to the motion or a request to postpone consideration of the motion, the court

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may consider the failure to act as a waiver of opposition to the defendants’ motion. If the

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defendants’ motion for summary judgment, whether opposed or unopposed, is granted, judgment

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will be entered for the defendants without a trial and the case will be closed.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff may file separate supplemental oppositions to defendants’

motions to dismiss and for summary judgment within 30 days of the date of this order; and
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Defendants may file separate supplemental replies within 15 days after

service of any supplemental oppositions.

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DATED: July 27, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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