Mitchell v. Cate et al

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/24/12 RECOMMENDING that 30 MOTION to DISMISS and 29 MOTION to DISMISS be granted and that this case be closed. Referred to Judge John A. Mendez; Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, 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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WESLEY MITCHELL,

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Plaintiff,

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No. CIV S-11-1240 JAM GGH P

vs.
MATTHEW L. CATE, et al.,
Defendants.

FINDINGS & RECOMMENDATIONS
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On March 2, 2012, defendant Miranda filed a motion to dismiss, pursuant to Fed.

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R. Civ. P. 12(b)(6), on the grounds that plaintiff failed to allege facts sufficient to support his

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claim for an Eighth Amendment violation. Docket # 29. Also on March 2, 2012, defendants

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Clark, Davey, Gower, McDonald, Sanders and Van Leer filed a separate motion to dismiss,

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pursuant to non-enumerated Fed. R. Civ. P. 12(b), on the grounds that plaintiff failed to exhaust

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his administrative remedies prior to filing this action in compliance with 42 U.S.C. § 1997e(a).

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Docket # 30. On March 28, 2012, defendant Miranda joined the motion of defendants Clark,

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Davey, Gower, McDonald, Sanders and Van Leer, alleging a failure by plaintiff to exhaust

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administrative remedies. Docket # 36. Plaintiff has not opposed the motions.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written
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 November 22, 2011, plaintiff was advised of the

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requirements for filing an opposition to a motion to dismiss and that failure to oppose such a

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motion timely may be deemed a waiver of opposition to the motion. Plaintiff was also

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specifically provided with notice, pursuant Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir.

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2003), of the requirements for opposing a motion to dismiss for failure to exhaust administrative

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remedies, pursuant to non-enumerated Fed. R. Civ. P. 12(b), and cautioned that failure to oppose

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the motion may be considered by the court as a waiver of opposition to the motion and, in any

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event, whether opposed or not, unexhausted claims would be dismissed without prejudice.

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Accordingly, plaintiff’s failure to oppose should be deemed a waiver of

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opposition to the granting of the motion. In the alternative, the court has reviewed the motions

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and find that they have merit. Specifically, defendant Miranda’s unopposed motion to dismiss

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the Eighth Amendment claim of inadequate medical care against him should be granted, and

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defendants have produced exhibits and supporting declarations sufficient to demonstrate that

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plaintiff has failed to exhaust his administrative remedies with respect to the claims at issue, i.e.,

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his claims of inadequate medical care, of due process violations in being subjected to

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administrative segregation and atypically difficult conditions therein, of deprivation of outdoor

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exercise and of his right to participate in religious activity to which plaintiff provides no

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opposition to dispute their showing.

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IT IS HEREBY RECOMMENDED that:

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1. Defendant Miranda’s March 2, 2012 (docket # 29), motion to dismiss for

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failure to state a claim be granted, and defendants’ March 2, 2012 (docket # 30), motion to

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dismiss for failure to exhaust administrative remedies in which defendant Miranda joined (docket

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# 36), be granted as well; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 24, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
mitc1240.46

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