Asberry v. Cate et al

Filing 85

ORDER signed by Magistrate Judge Kendall J. Newman on 10/30/12 ordering that plaintiff is granted 21 days to file either 1) a statement that he relies on his previously submitted opposition; 2) a new opposition; or 3) a supplemental opposition. (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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TONY ASBERRY,

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Plaintiff,

No. 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. On October 9, 2012, plaintiff filed his opposition.

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Defendants’ motion contains notice to plaintiff of his obligation in opposing a

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motion to dismiss for failure to exhaust administrative remedies pursuant to Woods v. Carey, 684

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F.3d 934 (9th Cir. 2012), and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003.) The Ninth

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Circuit has since clarified the notice required. See Stratton v. Buck, 2012 WL 4094937 (9th Cir.

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Sept. 19, 2012). Pursuant to Stratton, plaintiff is given the following additional notice of his

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obligation in opposition defendants’ motion.

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This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair,
timely and adequate notice of what is required” to oppose a motion to dismiss for failure to
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exhaust administrative remedies. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Wyatt v.

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Terhune, 315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003). The court requires that you be

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provided with this notice regarding the requirements for opposing a motion to dismiss for failure

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to exhaust administrative remedies.

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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. A “motion to dismiss for failure to

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exhaust administrative remedies is similar to a motion for a summary judgment in that the district

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court will consider materials beyond the pleadings.” Stratton v. Buck, 2012 WL 4094937, at *3

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(9th Cir. Sept. 19, 2012). The defendant may submit affidavits or declarations under penalty of

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perjury and admissible documents in support of the motion.

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To oppose the motion, you must 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.

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Accordingly, IT IS HEREBY ORDERED that plaintiff is granted twenty-one days

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to file either 1) a statement that he relies on his previously submitted opposition; 2) a new

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opposition; or 3) a supplemental opposition.

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DATED: October 30, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.not

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