Chiara v. Humboldt County Correctional Facility

Filing 21

ORDER. Signed by Judge Charles R. Breyer on 1/3/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN DUANE CHIARA,
Plaintiff(s),

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v.
T. HAUGER, et al.,
Defendant(s).

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No. C 11-5722 CRB (PR)
ORDER

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Plaintiff, a prisoner at the Humboldt County Jail (HCJ) in Eureka,

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California, filed a pro se Second Amended Complaint (SAC) under 42 U.S.C. §

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1983 alleging that on three separate occasions mail room staff improperly refused

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his incoming mail on grounds that it was gang related.

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Per order filed on November 7, 2012, the court found that, liberally

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construed, plaintiff's allegations state a cognizable § 1983 claim for violation of

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the First Amendment against HCJ mail room officers T. Hauger and S. Beck, and

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ordered the United States Marshal to serve these two defendants.

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Defendants have filed a motion for summary judgment under Federal Rule

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of Civil Procedure 56 on the grounds that (1) plaintiff did not exhaust his

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administrative remedies and (2) defendants did not violate plaintiff's

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constitutional rights. They have accompanied the motion by the requisite Rand

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notice of what is required of plaintiff in order to oppose a motion for summary

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judgment.

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Defendants' motion for summary judgment properly raises their claim that

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they are entitled to judgment as a matter of law because there is no evidence that

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defendants had any involvement in the alleged violations. But it is well

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established that a nonexhaustion defense should be raised in an unenumerated

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Rule 12(b) motion rather than in a motion for summary judgment. Wyatt v.

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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding such a motion – a

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motion to dismiss for failure to exhaust nonjudicial remedies – the court may

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look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.

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Consequently, such a motion requires its own notice as to what plaintiff must do

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in order to oppose the motion. A Rand notice about summary judgment

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procedures will not suffice. See Stratton v. Buck, 697 F.3d 1004, 1008-09 (9th

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Cir. 2012).

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In order to expedite these proceedings, the court will treat defendants'

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nonexhaustion defense as a motion to dismiss for failure to exhaust nonjudicial

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remedies and hereby gives plaintiff the requisite notice of what he must do to

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oppose the motion:

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Plaintiff is advised that a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your

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case, albeit without prejudice. You must "develop a record" and present it in

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

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defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120 n.14. You have

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the right to present any evidence to show that you did exhaust your available

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administrative remedies before coming to federal court. Such evidence may

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include: (1) declarations, which are statements signed under penalty of perjury by

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you or others who have personal knowledge of relevant matters; (2) authenticated

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documents – documents accompanied by a declaration showing where they came

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from and why they are authentic, or other sworn papers such as answers to

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interrogatories or depositions; (3) statements in your complaint insofar as they

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were made under penalty of perjury and they show that you have personal

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knowledge of the matters state therein. In considering a motion to dismiss for

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failure to exhaust, the court can decide disputed issues of fact with regard to this

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portion of the case. Stratton, 697 F.3d at 1008.

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Plaintiff shall file an opposition, or statement of non-opposition, to

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defendants' motion for summary judgment and motion to dismiss for failure to

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exhaust administrative remedies by no later than January 31, 2013. Defendants

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shall file a reply to any opposition within 15 days thereafter.

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SO ORDERED.

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DATED: Jan. 3, 2013
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.11\Chiara, S.11-5722.notice.wpd

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