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Wright v. California Dep't of Corrections

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 29, 2009

ANDRAE WRIGHT, SR., PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Raymond C. Fisher, United States Circuit Judge Sitting by Designation

ORDER DIRECTING DEFENDANTS TO FILE A MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

In their answer, defendants Advincula and Bortolamedi deny that plaintiff Wright exhausted administrative remedies and assert failure to exhaust as an affirmative defense. Answer p. 1 ¶ 2, p. 2. If defendants still intend to assert this defense, they are directed to file a motion to dismiss this action for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a). The parties' briefs on this issue shall be filed according to the following schedule:

Defendants' motion and supporting evidence shall be filed on or before October 23, 2009. Wright's optional opposition, including any supporting evidence, shall be filed on or before November 17, 2009.

Defendants' optional reply shall be filed on or before December 1, 2009.

If Wright contends that he is unable to oppose defendants' motion without conducting additional discovery, he should state in his opposition what discovery must be conducted and how that discovery would preclude dismissal of the action for a failure to exhaust.

It is so ORDERED.

20090929

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