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Kevin Bartholomew v. A. v. Solorzano

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 4, 2012

KEVIN BARTHOLOMEW, PLAINTIFF,
v.
A. V. SOLORZANO, DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff is a prisoner proceeding pro se with a complaint pursuant to 42 U.S.C. § 1983. On August 21, 2012, defendant filed a motion to dismiss the complaint for failure to exhaust administrative remedies. On August 28, 2012, plaintiff filed his opposition to defendant's motion to dismiss. Pursuant to the Ninth Circuit's recent decision in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), the court hereby reminds plaintiff of the following requirements for opposing the motion to dismiss for failure to exhaust administrative remedies made by defendant pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure.*fn1 Such a motion is a request for dismissal of unexhausted claims without prejudice. The defendant may submit affidavits or declarations under penalty of perjury and admissible documentation to support the motion to dismiss. To oppose the motion, plaintiff may likewise file declarations under penalty of perjury and admissible documentation. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters state and the plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one or more affidavits or declarations by other persons who have personal knowledge of relevant matters. Plaintiff may also rely upon written records, but plaintiff must prove that the records are what plaintiff claims they are. If plaintiff fails to contradict defendant's evidence with admissible evidence, the court may rely on the defendant's evidence. In the event both sides submit matters outside the pleadings, the court may look beyond the pleadings and decide disputed issues of fact. If plaintiff does not serve and file a written opposition to the motion, the court may consider the failure to act as a waiver of opposition to the defendant's motion. If the defendant's motion to dismiss, whether opposed or unopposed, is granted, plaintiff's unexhausted claims will be dismissed without prejudice. A motion or opposition supported by unsigned affidavits or declarations will be stricken.

Plaintiff now having received the notice required under Woods, IT IS HEREBY ORDERED that plaintiff will be provided twenty-one days to file additional materials in opposition to defendant's motion to dismiss, but it is not required. No extensions will be given.


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