McClendon v. Virga

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 10/15/2012 ORDERING that within 14 days, plaintiff shall SHOW CAUSE for his failure to file an opposition to defendants' motion to dismiss; within that time, plaintiff shall file his opposition; failure to file an opposition will be deemed a waiver of opposition. (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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YACUB AVICENNA McCLENDON,

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Plaintiff,

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No. 2: 12-cv-0550 KJN P

vs.

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WARDEN VIRGA, et al.,

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Defendants.

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ORDER
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On August 27, 2012, defendants filed a motion to dismiss for plaintiff’s failure to

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exhaust administrative remedies. Plaintiff failed to oppose defendants’ motion. Plaintiff is

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ordered to show cause for his failure to oppose defendants’ motion.

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The undersigned herein provides plaintiff with the notice regarding his obligation
in responding to motions to dismiss for failure to exhaust administrative remedies.
Wyatt Notice1

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The court requires that you be provided with this notice regarding the
requirements for opposing a motion to dismiss for failure to exhaust
administrative remedies.

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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 exhaust
administrative remedies. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Wyatt v. Terhune,
315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003).
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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 which you did not
exhaust available administrative remedies. The defendant may
submit affidavits or declarations under penalty of perjury and
admissible documents in support of the motion.

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To oppose the motion, you may submit proof of specific facts
regarding the exhaustion of administrative remedies. To do this,
you may refer to specific statements made in your complaint if you
signed your complaint under penalty of perjury and if your
complaint shows that you have personal knowledge of the matters
stated. You may also submit declarations setting forth facts
regarding exhaustion of your claims, as long as the person who
signs the declaration has personal knowledge of the facts stated.
You may also submit all or part of deposition transcripts, answers
to interrogatories, admissions, and other authenticated documents.
If you fail to contradict the defendant’s evidence with your own
evidence, the court may accept the defendant’s evidence as the
truth and grant the motion. If you do not respond to the motion,
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 unexhausted claims will be dismissed. If all of
your claims are unexhausted, your entire case will be over. If,
however, you exhaust administrative remedies for your claims at a
later date, you may raise those claims in a new action.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of

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this order, plaintiff shall show cause for his failure to file an opposition to defendants’ motion to

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dismiss; within that time, plaintiff shall file his opposition; failure to file an opposition will be

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deemed a waiver of opposition.

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DATED: October 15, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mc550.wya

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