Mitchell v. Cate et al

Filing 39

ORDER signed by Magistrate Judge Gregory G. Hollows on 07/12/12 vacating 37 FINDINGS AND RECOMMENDATIONS. Plaintiff is granted 21 days to file his opposition to defendants' motion to dismiss. There will be no further extension of time. (Plummer, M)

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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. 2:11-cv-1240 JAM GGH P

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

ORDER
/

By Findings and Recommendations filed on May 24, 2012, this court

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recommended granting defendant Miranda’s motion to dismiss for failure to state a claim, under

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Fed. R. Civ. P. 12(b)(6), as well as the motion to dismiss, pursuant to non-enumerated Rule

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12(b) brought by defendants Clark, Davey, Gower, McDonald, Sanders and Van Leer (in which

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defendant Miranda later joined as well). Plaintiff had failed to oppose the motions, which the

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court found constituted a waiver of opposition and, in the alternative, the motions were deemed

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to have merit. However, in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir.

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July 6, 2012), and notwithstanding that plaintiff was previously informed of the requirements to

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oppose a motion to dismiss for failure to exhaust pursuant Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003), plaintiff will be informed again.
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Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), the court

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hereby informs plaintiff of the following requirements for opposing a motion to dismiss for

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failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b). Such a motion is a

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request that the court dismiss without prejudice any unexhausted claims. The moving party may

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submit affidavits or declarations under penalty of perjury and admissible documents to support

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

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penalty of perjury and admissible documents. Plaintiff may rely on plaintiff’s statements made

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

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personal knowledge of the matters stated and plaintiff specifies the parts of the operative

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complaint on which plaintiff relies. Plaintiff may also rely on one or more affidavits or

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declarations sworn to by other persons who have personal knowledge of relevant matters. In

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addition, plaintiff may rely on written records, but plaintiff must prove that the records are what

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plaintiff asserts they are. If plaintiff fails to contradict defendant’s evidence with admissible

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

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outside of the pleadings, the court may look beyond the pleadings and decide disputed issues of

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fact. If plaintiff does not 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 motion. See L.R. 230(l). If the court grants the

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motion to dismiss, whether opposed or unopposed, plaintiff’s unexhausted claims will be

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dismissed without prejudice. A motion or opposition supported by unsigned affidavits or

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declarations will be stricken.

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In addition, plaintiff filed timely objections to the findings and recommendations

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recommending dismissal of this action, which he inappositely characterizes as a motion for relief

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from judgment under Rule 60(b). Plaintiff attaches documentation which he avers demonstrates

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that since February 19, 2012, the prison facility in which he is housed has undergone “a series of

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modified programs that made inmate movement next to impossible for most.” See docket # 38.

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He seeks therein leave to file his opposition to the motions. Although plaintiff should have, at a
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minimum, submitted with his objections any substantive opposition, the court will vacate the

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pending findings and recommendations. This will very generously afford plaintiff an additional

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opportunity to oppose the 12(b)(6) motion, as well as afford him an adequate opportunity to

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benefit from the fair notice contained herein in light of the recent Woods ruling, with respect to

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opposing the non-enumerated 12(b) motion. Plaintiff is cautioned, however, that, without

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exception, there will be no further extension of time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, filed on May 24, 2012 (docket # 37), are

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hereby VACATED;

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2. Plaintiff is granted twenty-one (21) days to file his opposition to defendants’
motions to dismiss both pursuant to nonenumerated Rule 12(b) and Rule 12(b)(6); and

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3. There will be no further extension of time.
DATED: July 12, 2012

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

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