Real v. Soltanian-Zedeh et al

Filing 42

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/12/12 ORDERING that plaintiff will be provided 21 days to file additional evidentiary submissions if he wishes. There will be no extensions of time. (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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DOUGLAS REAL,
Plaintiff,

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No. 2: 11-cv-1821 GGH P

vs.
JALAL SOLTANIAN-ZADEH, et al.,
Defendants.

ORDER
/

Defendants filed a motion to dismiss, pursuant to non-enumerated Rule 12(b), as

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well as under Fed. R. Civ. P 12(b)(6), which has been fully briefed and is pending. As to the

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ground for dismissal raised under non-enumerated Rule 12(b), plaintiff was previously informed

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of the requirements to oppose a motion to dismiss for failure to exhaust pursuant Wyatt v.

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Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). However, in light of Woods v. Carey,

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--- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), 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

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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.
Plaintiff will be provided 21 days to file additional evidentiary submissions if he

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wishes. No extensions will be given.
Accordingly, IT IS HEREBY ORDERED that plaintiff will be provided 21 days

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to file additional evidentiary submissions if he wishes. There will be no extensions of time.

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DATED: July 12, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: 009
real1821..brf

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