The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT'S MOTION TO DISMISS ORDER PERMITTING PLAINTIFF OPPORTUNITY TO WITHDRAW OPPOSITION AND FILE AMENDED OPPOSITION IN LIGHT OF WYATT NOTICE AND WARNING THIRTY DAY DEADLINE ORDER VACATING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT/MOTION TO DISMISS FROM COURT CALENDAR (Doc. 89.)
Jeffrey Kevin Gomez ("Plaintiff") is a prisoner proceeding pro se
with this civil rights action pursuant to 42 U.S.C. § 1983. This
action now proceeds with Plaintiff's Fourth Amended Complaint filed on
August 14, 2009, against defendant D. Ortiz ("Defendant") for
retaliation in violation of the First Amendment. *fn1
(Doc. 46.) On August 20, 2012, Defendant filed a motion
for summary judgment which contains both (1) a motion for summary
judgment and (2) a motion to dismiss for failure to exhaust
remedies. *fn2 (Doc. 89.) On October 15,
2012, Plaintiff filed an opposition to the motion for summary
judgment/motion to dismiss. (Doc. 96.) On October 22, 2012, Defendant
filed a reply to the opposition. (Doc. 100.)
Defendant and the Court provided Plaintiff with a Rand
*fn3 Notice and Warning, pursuant to the Ninth
Circuit's requirement in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012),
informing him of his rights and responsibilities in opposing
Defendant's motion for summary judgment. (Docs. 90, 91.) However,
Plaintiff has not been given the required Wyatt *fn4
Notice and Warning, pursuant to Woods, notifying him of
his rights and responsibilities in opposing Defendant's motion to
dismiss for failure to exhaust. Therefore, the Court shall, by this
order, provide Plaintiff with a Wyatt Notice and Warning and allow him
an opportunity to withdraw his opposition to Defendant's pending
motion and file an amended opposition.
II. WYATT NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANT'S MOTION TO DISMISS Pursuant to Woods, 684 F.3d 934 and Wyatt, 315 F.3d 1108, the Court now hereby notifies
Plaintiff of the following rights and requirements for opposing the motion to dismiss: Defendant has filed a motion to dismiss for failure to exhaust the administrative remedies as to one or more claims in the complaint. The failure to exhaust the administrative remedies is subject to an unenumerated 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 (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 (quoting Ritza, 837 F.2d at 368). If the Court concludes that Plaintiff has not exhausted the 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 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 responding to Defendant's unenumerated 12(b) motion to dismiss for failure to exhaust the administrative remedies, Plaintiff may not simply rely on allegations in the complaint. Instead, Plaintiff must oppose the motion by setting forth specific facts in 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 Plaintiff does not submit his own evidence in opposition, the Court may conclude that Plaintiff has not exhausted the administrative remedies and the case will be dismissed in whole or in part.
Unsigned declarations will be stricken, and declarations not signed under penalty of perjury have no evidentiary value.
III. CONCLUSION AND ORDER
In light of the Ninth Circuit's decision in Woods, Plaintiff has been provided with "fair notice" of the requirements for opposing a motion to dismiss for failure to exhaust remedies. The Court finds good cause at this juncture to open a thirty-day time period for Plaintiff to file further opposition to the pending motion for summary judgment/motion to dismiss, if he so wishes. The Court will not consider multiple oppositions, however, and Plaintiff has two options upon receipt of this order. Plaintiff may either (1) stand on his previously-filed opposition or (2) withdraw it and file an Amended Opposition. *fn5 The Amended Opposition, if any, must be complete in itself and must not refer back to any of the opposition documents Plaintiff filed on October 15, 2012. L.R. 220. *fn6
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff may, within thirty (30) days from the date of service of this order, withdraw his opposition and file an Amended Opposition to Defendants' motion for summary judgment/motion to dismiss of August 20, 2012;
2. If Plaintiff does not file an Amended Opposition in response to this order, his existing opposition, filed on October 15, 2012, will be considered in resolving Defendant's ...