UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 18, 2011
BONDOC, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING MOTION FOR COURT TO ACCEPT LATE-FILED DOCUMENTS (ECF No. 10)
Plaintiff Toni Levingston ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Motion asking the Court to accept documents showing that Plaintiff exhausted administrative remedies. (ECF No. 10.) The disputed documents are attached to the Motion.
As explained in the Court's First Informational Order, the parties may not file evidence with the Court until the course of litigation brings the evidence into question (for example, on a motion for summary judgment, at trial, or when requested by the Court). (ECF No. 3.) The failure to exhaust administrative remedies is an affirmative defense that must be raised by defendants. See Jones v. Bock, 549 U.S. 199, 216 (2007). If a defendant raises the issue of exhaustion, Plaintiff is free to file his evidence in opposition to that motion. However, as the case is currently postured, no one has raised the exhaustion of remedies issue.*fn1
Accordingly, Plaintiff's Motion for Court to accept documents is DENIED.
IT IS SO ORDERED.