Schlager v. Miranda

Filing 25

ORDER signed by Magistrate Judge Craig M. Kellison on 7/17/12 ORDERING that Plaintiff may file an opposition to defendants motion to dismiss within 30 days of the date of this order; and Defendants may file a reply within 15 days after service of any opposition. (Dillon, 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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ANDREW G. SCHLAGER,

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Plaintiff,
vs.

ORDER

R. MIRANDA,

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Defendant.

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No. 2:11-CV-1591-JAM-CMK-P

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

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Pending before the court is defendant’s motion to dismiss. That motion was not,

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however, accompanied by a contemporaneous notice to plaintiff advising him as to his

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obligations in opposing a motion to dismiss. The court will now provide that notice and also

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provide plaintiff an opportunity to file an opposition in light of this notice.1 Defendants will also

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be permitted time to file a reply. If no opposition is filed within the time provided herein, the

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matter will stand submitted on the current record.

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To date, plaintiff has not filed any opposition to defendant’s motion, which was
filed on December 9, 2011.
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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. 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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Accordingly, IT IS HEREBY ORDERED that:

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1.

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days of the date of this order; and

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2.

Plaintiff may file an opposition to defendant’s motion to dismiss within 30

Defendants may file a reply within 15 days after service of any opposition.

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DATED: July 17, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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