Turner v. Cates et al

Filing 40

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/12/12 ORDERING that plaintiff is granted an extension of time until August 15, 2012, to provide his opposition to the pending motions. Failure to do so will result in a recommendation of dismissal of this action. (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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ANTHONY R. TURNER,
Plaintiff,

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vs.
MATTHEW CATES, et al.,
Defendants.

ORDER
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No. 2:11-cv-1690 WBS GGH P

Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C.

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§ 1983. Defendants filed a motion to revoke plaintiff’s in forma pauperis status on June 13,

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2012, and a motion to dismiss, on June 27, 2012, pursuant to non-enumerated Rule 12(b), as well

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

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plaintiff was previously informed of the requirements to oppose a motion to dismiss for failure to

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exhaust pursuant Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). However, in light

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of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), plaintiff will be

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informed again.

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Pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), the court
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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Plaintiff will be provided additional time in light of the timing of this notice to

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oppose the motion to dismiss under non-enumerated Rule 12(b). The court notes that plaintiff

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has filed no opposition to the motion to revoke his in forma pauperis status and has evidently

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refused to accept court orders served on him by mail on June 28, 2012, and on July 6, 2012,

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despite their having been re-served. To the extent, that plaintiff may not be at located at the

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address of record, Plaintiff is reminded that it is his responsibility to keep the court apprised of

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his current address at all times. Pursuant to Local Rule 182(f), service of documents at the

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record address of the party is fully effective. Local Rule 230(l) provides in part: “Failure of the
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responding party to file written opposition or to file a statement of no opposition may be deemed

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a waiver of any opposition to the granting of the motion . . . .” Further, Local Rule 110 provides

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that failure to comply with the Local Rules “may be grounds for imposition of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” By order

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filed on March 22, 2012, plaintiff was advised of the above requirements for filing opposition

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under the Local Rules and cautioned that failure to comply with the Local Rules might result in

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the imposition of sanctions. Post-Woods, notice in that order remains sufficient with respect to

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defendants’ motions to revoke plaintiff’s in forma pauperis status and to dismiss pursuant to

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Fed. R. Civ. P. 12(b)(6). Plaintiff is cautioned as to those motions that his failure to respond to

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them will be deemed a waiver of opposition. As to the ground raised under non-enumerated

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Rule 12(b), a failure to oppose will likewise be deemed a waiver of opposition, should plaintiff

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fail to oppose on that ground as well following the extension of time the court will herein

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provide.
Accordingly, IT IS HEREBY ORDERED that plaintiff is granted an extension of

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time until August 15, 2012, to provide his opposition to the pending motions. Failure to do so

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will result in a recommendation of dismissal of this action.

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DATED: July 12, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: 009
turn1690.brf

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