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Lawrence L. Marsh v. C. Cano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 19, 2011

LAWRENCE L. MARSH ,
PLAINTIFF(S),
v.
C. CANO, ET AL., DEFENDANT(S).

SECOND INFORMATIONAL ORDER, AND MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT NOTICE

The plaintiff is proceeding pro se in this civil action. Pursuant to Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby notifies the plaintiff of the following rights and requirements for motions:

1. Unless otherwise ordered, all motions to dismiss, motions for summary judgment, motions concerning discovery, motions pursuant to Rules 7, 11, 12, 15, 41, 55, 56, 59 and 60 of the Federal Rules of Civil Procedure, and motions pursuant to Local Rule 110 shall be briefed pursuant to Local Rule 230(l).*fn1

2. If the defendants file a motion to dismiss, a motion for summary judgment, or other type of motion, the plaintiff is required to file an opposition or a statement of non-opposition to the

to the motion, this action may be dismissed, with prejudice, for failure to prosecute. The opposition or statement of non-opposition must be filed not more than 21 days after the date of service of the motion. Id.

motion. Local Rule 230(l). If the plaintiff fails to file an opposition or a statement of non-opposition

3. At some point in the litigation, the defendants may file a motion to dismiss for failure to exhaust administrative remedies as to one or more claims in the complaint. The failure to exhaust administrative remedies is subject to a Rule 12(b) motion to dismiss. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's &Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure to exhaust, the court will look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20 (citing Ritza, 837 F.2d at 369). If the court concludes that the plaintiff has not exhausted administrative remedies, the unexhausted claims must be dismissed and the court will grant the motion to dismiss. Wyatt, 315 F.3d at 1120. If all of the claims are unexhausted, the case will be dismissed, which means the plaintiff's case is over. If some of the claims are exhausted and some are unexhausted, the unexhausted claims will be dismissed and the case will proceed forward only on the exhausted claims. Jones v. Bock, 549 U.S. 199, 219-224, 127 S. Ct. 910, 923-26 (2007). A dismissal for failure to exhaust is without prejudice. Wyatt, 315 F.3d at 1120.

If the defendants make a motion to dismiss for failure to exhaust administrative remedies, the plaintiff may not simply rely on allegations in the complaint. Instead, the plaintiff must oppose the motion by setting forth specific facts in a declaration(s) and/or by submitting other evidence regarding the exhaustion of administrative remedies. See Fed. R. Civ. P. 43(c); Ritza, 837 F.2d at 369. If the plaintiff does not submit his or her own evidence in opposition, the court may conclude that the plaintiff has not exhausted administrative remedies and the case will be dismissed.*fn2

4. NOTICE--WARNING TO PLAINTIFF

At some point in the litigation, the defendants may file a motion for summary judgment as to some or all of your claims. A motion for summary judgment seeks to end part or all of your case, and

the motion for summary judgment, and Rule 56 tells you what to do. If the defendants win a motion for summary judgment, part or all of your case will be over without any trial. If a motion for summary judgment is granted as to all of your claims, your case will be over.

if the motion is granted, your entire case may be over without any trial. You have a right to oppose

Rule 56 of the Federal Rules of Civil Procedure tells you what you must do to oppose a motion for summary judgment. Generally, the defendants' motion for summary judgment will be supported by declarations or other sworn testimony, and the defendants will submit a Statement of Undisputed Facts, which is an itemized list of facts which the defendants argue entitle them to judgment as a matter of law. Fed. R. Civ. P. 56; Local Rule 260(a).

If you agree with the defendants' facts, you may still oppose the motion for summary judgment by arguing that the defendants are not entitled to judgment because of the law that applies to your case.

If you do not agree with the defendants' facts, you may dispute them by setting out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56, that contradict the facts shown in the defendants' declarations and documents and show*fn3 how there is a genuine issue of material fact for trial. You may rely upon statements made under penalty of perjury in your complaint or opposition if (a) the complaint or opposition shows that you have personal knowledge of the matters stated, and (b) you call to the court's attention those parts of the complaint or opposition upon which you rely.

If you fail to controvert the defendants' motion with declarations or other evidence, the defendants' evidence may be taken as the truth and final judgment may be entered against you without a trial.

When you oppose a motion for summary judgment, Local Rule 260(b) of the Eastern District of California requires that you reproduce the defendants itemized facts in their Statement of

Local Rule 260(b). If you dispute (deny) a fact, you must cite to the evidence used to support that denial (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other document). Id..

Undisputed Facts and admit those facts which are undisputed and deny those which are disputed.

If you need additional time or more discovery before you can present facts to oppose the motion for summary judgment, the court will consider a request to postpone consideration of the motion. Fed. R. Civ. P. 56. Local Rule 260(b) requires you to specify which particular facts or issues require more discovery. Any request to postpone consideration of the defendants' motion for summary judgment must include the following: (1) a declaration setting forth the specific facts you hope to find out from further discovery, (2) a showing that the facts exist, and (3) a showing that the facts are essential to opposing the motion for summary judgment. State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).

5. Unsigned declarations will be stricken, and declarations not signed under penalty of perjury have no evidentiary value.

6. The failure of any party to comply with this order, the Federal Rules of Civil Procedure, or the Local Rules of the Eastern District of California may result in the imposition of sanctions including but not limited to dismissal of the action or entry of default.

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE


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