Shields v. Ahern et al

Filing 17

ORDER by Judge James Donato dismissing 9 Motion to Dismiss; granting 16 Administrative Motion to refile. (lrcS, COURT STAFF) (Filed on 12/20/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REMON A. SHIELDS, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.16-cv-00331-JD ORDER VACATING MOTION TO DISMISS WITHOUT PREJUDICE v. GREGORY J. AHERN, et al., Re: Dkt. Nos. 9, 16 Defendants. 12 13 Plaintiff, a state prisoner proceeding pro se, proceeds with a civil rights action. Defendants 14 previously filed a motion to dismiss. However, defendants failed to file notice pursuant to Wyatt 15 v. Terhune, 315 F.3d 1108 (9th Cir. 2003), because the Court was requested to consider matters 16 outside the pleadings. Defendants have filed a request to refile the motion with the appropriate 17 Wyatt notice. Plaintiff has not filed an opposition but will be provided another opportunity. The 18 Court hereby orders as follows: 19 20 21 1. The motion to dismiss (Docket No. 9) is DISMISSED without prejudice. The motion to refile (Docket No. 16) is GRANTED. 2. Within fourteen (14) days, defendants shall refile the motion to dismiss and serve the 22 motion and Wyatt notice and notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1988), on 23 plaintiff. Plaintiff shall file an opposition with twenty-eight (28) days upon service of the motion. 24 Failure to file an opposition may result in dismissal of this action. 25 26 27 28 1 2 3 Defendants may file a reply fourteen (14) days after the opposition is filed. IT IS SO ORDERED. Dated: December 20, 2016 4 5 JAMES DONATO United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 United States District Court Northern District of California 10 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 18 19 20 NOTICE -- WARNING (EXHAUSTION) If defendants file a motion for summary judgment for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 26 If defendants file a motion for summary judgment for failure to exhaust and it is granted, your case will be dismissed and there will be no trial. 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 REMON A. SHIELDS, Case No. 16-cv-00331-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 GREGORY J. AHERN, et al., Defendants. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on December 20, 2016, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Remon A. Shields ID: P64820 R.J. Donovan Corr. Facility 480 Alta Road San Diego, CA 92179 19 20 21 Dated: December 20, 2016 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 4

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