Espinoza v. McDonald

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 7/25/12 ORDERING that Within twenty-one days after the service date of this order, plaintiff may file an opposition to defendants motion to dismiss by filing and serving: (a) a new comprehensive o pposition to the motion, including all pertinent exhibits; (b) a supplemental opposition, and any new exhibits; OR (c) a statement that plaintiff chooses to rely on his previously-filed opposition and exhibits. Within seven days after the date of service of the opposition, defendant may file and serve: (a) a new comprehensive reply to plaintiffs opposition; (b) a supplemental reply; or (c) a statement that defendant chooses to rely on his previously-filed reply. (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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GABRIEL ESPINOZA,

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Plaintiff,

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No. 2: 11-cv-3358 KJN P

vs.

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M.D. McDONALD, 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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filed pursuant to 42 U.S.C. § 1983. On June 4, 2012, defendant filed a motion to dismiss on

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grounds that plaintiff to exhaust his administrative remedies. On July 2, 2012, plaintiff filed an

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opposition. On July 6, 2012, defendant filed a reply. On July 23, 2012, plaintiff filed exhibits in

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support of his opposition.

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Pursuant to the Ninth Circuit’s recent decision in Woods v. Carey, __F.3d __,

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2012 WL 2626912 (9th Cir., July 06, 2012 ), it is necessary to provide contemporaneous notice

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to plaintiff of the requirements for opposing a motion to dismiss for failure to exhaust

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administrative remedies. This notice is provided herein.

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

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within twenty-one days after the service date of this order, plaintiff may file an

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opposition to defendant’s motion to dismiss by filing and serving: (a) a new comprehensive

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opposition to the motion, including all pertinent exhibits; (b) a supplemental opposition, and any

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new exhibits; OR (c) a statement that plaintiff chooses to rely on his previously-filed opposition

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and exhibits.

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2. Within seven days after the date of service of the opposition, defendant may

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file and serve: (a) a new comprehensive reply to plaintiff’s opposition; (b) a supplemental reply;

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or (c) a statement that defendant chooses to rely on his previously-filed reply.

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DATED: July 25, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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esp3358.rand

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