Isgrigg v. Lebeck et al

Filing 37

NOTICE (Wyatt Notice) signed by Magistrate Judge Carolyn K. Delaney on 1/29/13. (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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RICHARD L. ISGRIGG, III,

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Plaintiff,

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vs.

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No. 2:11-cv-2780 KJM CKD P

J. LEBECK, et al.,

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Defendants.

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NOTICE
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Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, 684 F.3d 934

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(9th Cir. 2012), the court hereby reminds plaintiff of the following requirements for opposing the

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motion to dismiss filed by defendants on January 24, 2013. (Dkt. No. 36.)1

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Wyatt Notice to Plaintiff

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This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair,

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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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Defendants have included a version of Wyatt notice with their motion. (Dkt. No. 36-2.)
However, the court directs all defendants who file a motion to dismiss for failure to exhaust
administrative remedies to “contemporaneously serve . . . a copy of the attached Wyatt notice.”
(Dkt. No. 27 at 3, 6-7.)
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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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Dated: January 29, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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isgr2780.mtd.not

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