The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER PROVIDING PLAINTIFF NOTICE OF DEFENDANTS' PLEADINGS PURSUANT TO WYATT SETTING BRIEFING SCHEDULE MOTION FOR JUDGMENT ON THE
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.*fn1 On January 30, 2013, Defendants filed a Motion for Judgment on the Pleadings pursuant to FED.R.CIV.P. 12(c) [ECF No. 24].*fn2
Defendants argue, in part, that Plaintiff has failed to exhaust her administrative remedies prior to suit as required by 42 U.S.C. § 1997e(a).
A "motion to dismiss based on the failure to exhaust administrative remedies is closely analogous to a motion for summary judgment," in that the district court "may look beyond the pleadings and decide disputed issues of fact." Stratton v. Buck, 697 F.3d 1004, 1007, 1008 (9th Cir. 2012) (citing Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003)).
Therefore, if the Court looks beyond the pleadings when deciding a motion to dismiss for failure to exhaust, it "must assure that [the plaintiff] has fair notice of h[er] opportunity to develop a record." Id. at 1008; Wyatt, 315 F.3d at 1120 n.14; see also Marella v. Terhune, 568
F.3d 1024, 1028 (9th Cir. 2009) (remanding case to district court where court failed to "effectively give [plaintiff] fair notice that he should have submitted evidence regarding exhaustion of administrative remedies").
Accordingly, Plaintiff is hereby provided with notice that Defendants have filed a motion which asks the Court to dismiss her case (or part of it) because she failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Woods v. Carey, 684 F.3d 934, 936, 939 (9th Cir. 2012). If Plaintiff wishes to oppose Defendants' Motion, she should include in her Opposition whatever arguments, evidentiary material, or documents she may have to show that she did, in fact, exhaust all administrative remedies as were available to her prior to filing suit. See Wyatt, 315 F.3d at 1119-21; Marella, 568 F.3d at 1028; Stratton, 697 F.3d at 1008 (noting plaintiff has the "right to file counter-affidavits or other responsive evidentiary material" which is relevant to show the administrative exhaustion of her claims).
If Defendants' Motion and supporting proof is sufficient to show that she has failed to exhaust, and Plaintiff fails to develop the record by providing evidence to the contrary as part of her Opposition, her unexhausted claims will be dismissed without prejudice and she will not be able to proceed as to those claims in this action. See Wyatt, 315 F.3d at 1120 ("If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice.").
In light of this Notice, the Court sets the following briefing schedule:
1) Plaintiff, if she chooses, may file an Opposition to Defendants' Motion to Dismiss, which includes evidentiary material related to the exhaustion of her claims, and serve it upon Defendants' counsel of record no later than Friday, March 22, 2013.
2) Defendants may file a Reply to Plaintiff's Opposition, and serve it upon Plaintiff no later than Friday, March 29, 2013.
3) Defendants' Motion is set for hearing in Courtroom 15B on Friday, April 5, 2013 at 11:00 a.m. However, at that time, the Court will consider the matter fully briefed as submitted on the papers and will issue its written ruling on Defendants' Motion soon thereafter. Unless otherwise ordered, no appearances are required on the ...