Gomez v. Hedgepeth et al

Filing 67

ORDER Granting Plaintiff Leave to File Late Opposition to Defendants' Motion for Dismissal and Summary Judgment. Signed by Judge Thelton E. Henderson on 04/03/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/4/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID MAURICE GOMEZ,

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Plaintiff,

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No. C-11-3784 TEH (PR)

A. HEDGEPETH, et al.,

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Defendants.

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Plaintiff David Maurice Gomez, a state prisoner
incarcerated at Salinas Valley State Prison (SVSP), has filed this
civil rights action under 42 U.S.C. § 1983 regarding incidents that
took place at SVSP.

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On April 12, 2012, this Court ordered service

of Plaintiff’s complaint and set a briefing schedule for Defendants
to file a dispositive motion.

Doc. #5.

The briefing schedule

required Defendants to file a dispositive motion within ninety days
from the date of the Order and for Plaintiff to file an opposition
no later than thirty days after Defendants served Plaintiff with
the motion.

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ORDER GRANTING PLAINTIFF LEAVE
TO FILE LATE OPPOSITION TO
DEFENDANTS’ MOTION FOR
DISMISSAL AND SUMMARY JUDGMENT

v.

After the Court granted several requests by Defendants to
extend the time to file their dispositive motion, they filed a
motion for dismissal and summary judgment on November 9, 2012.
Doc. #49.

Plaintiff’s opposition was due thirty days later, on

December 9, 2012.

To date, Plaintiff has not filed an opposition

nor has he requested an extension of time in which to do so.

In

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the interests of justice, the Court grants Plaintiff leave to file

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his opposition late, but he must file it within thirty days from

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the date of this Order.

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Plaintiff is provided the following warning regarding

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what he must do to oppose Defendants’ motion to dismiss based on

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lack of exhaustion.

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The defendants have made a motion to dismiss pursuant to

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Rule 12(b) of the Federal Rules of Civil Procedure, on the ground

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you have not exhausted your administrative remedies.

The motion

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will, if granted, result in the dismissal of unexhausted claims,

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albeit without prejudice.

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motion to dismiss for failure to exhaust, and that motion is

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properly supported by declarations (or other sworn testimony)

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and/or documents, you may not simply rely on what your complaint

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says.

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opposition in order to dispute any "factual record" presented by

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the defendants in their motion to dismiss.

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F.3d 1108, 1120 n.14 (9th Cir. 2003).

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facts that contradict the facts shown in the defendants’

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declarations and documents and show that you have exhausted your

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claims in one or more of the following: (1) declarations, which are

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statements signed under penalty of perjury by you or others who

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have personal knowledge of relevant matters; (2) authenticated

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documents, which are documents accompanied by a declaration showing

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where they came from and why they are authentic; and (3) statements

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in your complaint insofar as they were made under penalty of

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perjury and they show that you have personal knowledge of the

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When a party you are suing makes a

You must "develop a record" and present it in your

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Wyatt v. Terhune, 315

You must set out specific

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matters stated therein.

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opposition, the motion to dismiss, if appropriate, may be granted

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and the unexhausted claims dismissed.

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If you do not submit your own evidence in

Plaintiff is provided the following warning regarding
what he must do to oppose Defendants’ motion for summary judgment.

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A motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment.

Generally, summary judgment must be granted when

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there is no genuine issue of material fact -- that is, if there is

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no real dispute about any fact that would affect the result of your

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case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case.

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party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you

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cannot simply rely on what your complaint says.

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set out specific facts in declarations, depositions, answers to

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interrogatories, or authenticated documents, as provided in Rule

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56(c), that contradict the facts shown in the defendants'

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declarations and documents and show that there is a genuine issue

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of material fact for trial.

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in opposition, summary judgment, if appropriate, may be entered

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against you.

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defendants], your case will be dismissed and there will be no

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trial.

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When a

Instead, you must

If you do not submit your own evidence

If summary judgment is granted [in favor of the

CONCLUSION
Plaintiff is granted leave to file a late opposition to
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Defendants’ motion for dismissal and summary judgment.

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must file his opposition within thirty days from the date of this

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Order.

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IT IS SO ORDERED.
DATED

04/03/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.11\Gomez11-3874-Pl LateOpp.wpd

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Plaintiff

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