Chavez v. Granado

Filing 19

ORDER signed by Magistrate Judge Carolyn K. Delaney on 07/11/12 ORDERING that plaintiff's opposition to defendant's 18 Motion to Dismiss is due 08/10/12. Failure to file an opposition by 08/10/12 will result in a recommendation that this action be dismissed. Any reply to plaintiff's opposition shall be due no later than 14 days after service of the opposition. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CHAVEZ,

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Plaintiff,

Defendant.

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No. 2:11-cv-1015 WBS CKD P

ORDER

vs.
GRANADOZ,

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

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1983. On May 30, 2012, Defendant filed a motion to dismiss the complaint for failure to exhaust

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administrative remedies. Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, Nos.

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

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

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

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the Federal Rules of Civil Procedure.1 Such a motion is a request for dismissal of unexhausted

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claims without prejudice. 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 was also advised of these requirements on February 17, 2012. (See Dkt. No.

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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 state and the plaintiff calls

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

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

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knowledge of relevant matters. Plaintiff may also rely upon written records, but plaintiff must

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prove that the records are what plaintiff claims they are. If plaintiff fails to contradict

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defendant’s evidence with admissible evidence, the court may rely on the defendant’s evidence.

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In the event both sides submit matters outside the pleadings, the court may look beyond the

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pleadings and decide disputed issues of fact. If plaintiff does not serve and file a written

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

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defendant’s motion. If the defendant’s motion to dismiss, whether opposed or unopposed, is

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granted, plaintiff’s unexhausted claims will be dismissed without prejudice. A motion or

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opposition supported by unsigned affidavits or declarations will be stricken.

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Plaintiff now having received the notice required under Woods, 2012 WL
2626912, IT IS HEREBY ORDERED that:

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1. Plaintiff’s opposition to defendant’s May 30, 2012 motion to dismiss is due by

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August 10, 2012. Failure to file an opposition by August 10, 2012 will result in a

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

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2. Any reply to plaintiff’s opposition shall be due no later than 14 days after

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service of the opposition.

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Dated: July 11, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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chav1015.not

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