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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?