Quinonez v. Pioneer Medical Center et al

Filing 28

ORDER Providing Plaintiff Notice Of Defendants' Motion To Dismiss Pursuant To Wyatt v. Terhune And Setting Briefing Schedule (Re Doc. 25 ): Plaintiff's Opposition due by 6/7/2013. Replies due by 6/21/2013. At that time, the Court will cons ider the matter fully briefed as submitted on the papers and will thereafter issue a written Report and Recommendation. Unless otherwise ordered, no appearances are required on the date set for hearing and no oral argument will be held. Signed by Magistrate Judge David H. Bartick on 4/19/2013. (All non-registered users served via U.S. Mail Service.)(mdc)(jrd)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIXTO NAVARRETTE QUINONEZ, Plaintiff, 12 v. 13 PIONEER MEDICAL CENTER, et al., 14 Defendants. Civil No. 12-cv-0629-WQH (DHB) ORDER PROVIDING PLAINTIFF NOTICE OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO WYATT V. TERHUNE AND SETTING BRIEFING SCHEDULE 15 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. 18 Defendants have filed a Motion to Dismiss the Complaint pursuant to Federal Rule 19 of Civil Procedure 12(b). (ECF No. 25.) Defendants argue Plaintiff has failed to exhaust 20 administrative remedies prior to suit as required by 42 U.S.C. § 1997e(a). Defendants 21 alternatively argue that this action should be transferred to the Central District of 22 California. 23 “[A] motion to dismiss for failure to exhaust administrative remedies is similar to 24 a motion for summary judgment in that the district court will consider documents beyond 25 the pleadings.” Stratton v. Buck, 697 F.3d 1004, 1009 (9th Cir. 2012); see also Wyatt v. 26 Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (“In deciding a motion to dismiss for 27 a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and 28 decide disputed issues of fact.”) (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s -1- 12cv629-WQH (DHB) 1 Union, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam)). 2 If the court looks beyond the pleadings “in deciding the motion to dismiss for 3 failure to exhaust -- a procedure closely analogous to summary judgment -- then the court 4 must assure that [the plaintiff] has fair notice of his opportunity to develop a record.” 5 Wyatt, 315 F.3d at 1120 n.14; see also Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 6 2009) (remanding case to district court where court failed to “effectively give [plaintiff] 7 fair notice that he should have submitted evidence regarding exhaustion of administrative 8 remedies.”). 9 Accordingly, Plaintiff is hereby provided with notice that Defendants have filed 10 a motion which asks the Court to dismiss his case (or part of it) because he failed to 11 exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Woods v. Carey, 12 684 F.3d 934, 936, 939 (9th Cir. 2012). Plaintiff should include in his Opposition to 13 Defendants’ Motion whatever arguments, evidentiary material or documents he may have 14 to show that he did, in fact, exhaust all administrative remedies as were available to him 15 prior to filing suit. See Stratton, 697 F.3d at 1008 (noting plaintiff has the “right to file 16 counter-affidavits or other responsive evidentiary materials” which is relevant to show 17 the administrative exhaustion of his claims); Marella, 568 F.3d at 1028; Wyatt, 315 F.3d 18 at 1119-21. 19 If Defendants’ Motion and supporting proof is sufficient to show that Plaintiff has 20 failed to exhaust, and Plaintiff fails to develop the record by providing evidence to the 21 contrary, his unexhausted claims will be dismissed without prejudice and he will not be 22 able to proceed as to those claims in this action. See Wyatt, 315 F.3d at 1120 (“If the 23 district court concludes that the prisoner has not exhausted nonjudicial remedies, the 24 proper remedy is dismissal of the claim without prejudice.”). Conclusion and Order 25 26 Accordingly, the Court sets the following briefing schedule: 27 1. 28 Plaintiff, if he chooses, may file an Opposition to Defendants’ Motion to Dismiss or in the alternative Motion to Transfer Venue, which includes evidentiary -2- 12cv629-WQH (DHB) 1 material related to the exhaustion of his claims, and serve it upon Defendants’ counsel 2 of record no later than June 7, 2013. 3 4 2. Defendants may file a Reply to Plaintiff’s Opposition, and serve it upon Plaintiff no later than June 21, 2013. 5 At that time, the Court will consider the matter fully briefed as submitted on the 6 papers and will thereafter issue a written Report and Recommendation. Unless otherwise 7 ordered, no appearances are required on the date set for hearing and no oral argument will 8 be held. See S.D. Cal. CivLR 7.1.d.1. 9 10 IT IS SO ORDERED. DATED: April 19, 2013 11 12 DAVID H. BARTICK United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 12cv629-WQH (DHB)

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