Asberry v. Cate et al

Filing 77

ORDER signed by Magistrate Judge Kendall J. Newman on 9/19/2012 ORDERING that plaintiff's 74 motion for law library access is DENIED; plaintiff's opposition to the motion to dismiss is due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,

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No. 2: 11-cv-2462 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. On August 20, 2012, defendants filed a motion to dismiss for

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failure to exhaust administrative remedies and for failure to state a claim for relief pursuant to

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Federal Rule of Civil Procedure 12(b) and (b)(6).

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On August 31, 2012, plaintiff filed a letter with the court stating that he does not

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know the deadline for responding to defendants’ motion to dismiss. The March 22, 2012 order

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for service informed plaintiff that all motions pursuant to Federal Rule of Civil Procedure 12

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were to be briefed pursuant to Local Rule 230(l). Local Rule 230(l) provides that oppositions to

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motions are due within twenty-one days of service of the motion. Plaintiff is granted twenty-one

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days from the date of this order to file his opposition to defendants’ motion to dismiss.

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While defendants’ motion to dismiss gave plaintiff notice of the requirements for

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opposing a motion to dismiss for failure to exhaust administrative remedies, in an abundance of

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caution plaintiff is herein provided with additional notice.

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When a defendant moves to dismiss some or all of your claims for failure to

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exhaust administrative remedies, the defendant is requesting that the court dismiss claims for

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which you did not exhaust available administrative remedies. The defendant may submit

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affidavits or declarations under penalty of perjury and admissible documents in support of the

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motion.

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To oppose the motion, you may submit proof of specific facts regarding the

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exhaustion of administrative remedies. To do this, you may refer to specific statements made in

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your complaint if you signed your complaint under penalty of perjury and if your complaint

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shows that you have personal knowledge of the matters stated. You may also submit declarations

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setting forth facts regarding exhaustion of your claims, as long as the person who signs the

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declaration has personal knowledge of the facts stated. You may also submit all or part of

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deposition transcripts, answers to interrogatories, admissions, and other authenticated documents.

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If you fail to contradict the defendant’s evidence with your own evidence, the court may accept

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the defendant’s evidence as the truth and grant the motion. If you do not respond to the motion,

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the court may consider your failure to act as a waiver of your opposition. See L.R. 230(l).

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If the court grants the defendant’s motion, whether opposed or unopposed, your

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unexhausted claims will be dismissed. If all of your claims are unexhausted, your entire case will

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be over. If, however, you exhaust administrative remedies for your claims at a later date, you

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may raise those claims in a new action, if they are not otherwise time-barred.

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On August 31, 2012, plaintiff filed a motion for law library access. In this

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motion, plaintiff alleges that due to the hours that the law library is open, he will not have

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adequate time to prepare his opposition. After reviewing plaintiff’s motion, the undersigned

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finds that plaintiff has not demonstrated that his law library access is inadequate. For this reason,
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plaintiff’s motion is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for law library access (Dkt. No. 74) is denied;

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2. Plaintiff’s opposition to defendants’ motion to dismiss is due within twenty-

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one days of the date of this order.

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DATED: September 19, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.opp

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