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Jimmy O. Gonzales v. T. Francisco

February 27, 2013

JIMMY O. GONZALES,
PLAINTIFF,
v.
T. FRANCISCO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER STRIKING DENYING MOTION AND STRIKING EXHIBITS (Doc. 9)

Plaintiff Jimmy O. Gonzales, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 1, 2012. On February 1, 2013, Plaintiff filed a motion seeking leave to file evidence of exhaustion, accompanied by exhibits.

The failure to exhaust is an affirmative defense which must be raised and proved by the defendants. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921 (2007); Wyatt v. Terhune, 315

F.3d 1108, 1119 (9th Cir. 2003). The Court cannot serve as a repository for evidence submitted in the absence of any proceeding before the Court necessitating that evidence. If the defendants file a motion to dismiss for failure to exhaust in the future, Plaintiff may then submit his evidence regarding exhaustion. Until then, it should not be filed with the Court.

Accordingly, Plaintiff's motion to submit evidence of exhaustion is HEREBY DENIED and the exhibits are STRICKEN from the record.

IT IS SO ORDERED.

20130227

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