United States District Court, E.D. California
ELAINE K. VILLAREAL, Plaintiff,
COUNTY OF FRESNO, Defendant.
ORDER CONVERTING MOTION TO DISMISS INTO A MOTION FOR
SUMMARY JUDGMENT AND ALLOWING BOTH PARTIES TO SUBMIT
ADDITIONAL EVIDENCE (ECF NO. 12)
K. Villareal (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
On September 17, 2015, Plaintiff filed the complaint
commencing this action. (ECF No. 1). In an order dated
November 8, 2016, this Court allowed Plaintiff's action
to proceed against the County of Fresno on a claim for
violation of the Eighth Amendment based on unconstitutional
conditions of confinement. (ECF No. 7).
January 31, 2017, Defendant County of Fresno filed a motion
to dismiss on the ground that Plaintiff failed to properly
exhaust her administrative remedies. (ECF No. 12). Plaintiff
filed an opposition, (ECF No. 19), and Defendant filed a
reply (ECF No. 20). The Court heard oral arguments on April
7, 2017, and took the matter under advisement. (ECF No. 25).
to exhaust under the PLRA is ‘an affirmative defense
the defendant must plead and prove.' Jones v.
Bock, 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d
798 (2007). In the rare event that a failure to exhaust is
clear on the face of the complaint, a defendant may move for
dismissal under Rule 12(b)(6). Otherwise, defendants must
produce evidence proving failure to exhaust in order to carry
their burden.” Albino v. Baca, 747 F.3d 1162,
1166 (9th Cir. 2014).
motion includes evidence beyond the pleadings in support of
the position that Plaintiff failed to exhaust her
administrative remedies. At oral argument, Plaintiff
discussed additional evidence she believes is relevant to the
issue, which also went beyond the information in her
the Court will convert Defendant's motion to dismiss into
a motion for summary judgment. Both parties will be given
twenty-eight days to file additional evidence if they choose
to do so, and fourteen days from receipt of the opposing
parties' evidence to file a reply and objections to the
opposing parties' evidence, if they choose. Once these
deadlines have passed, the Court will either rule on the
motion (directly or by issuing findings and recommendations)
based on the record or order and evidentiary hearing to
resolve disputed issues of fact.
Court notes that, as discovery has not yet been opened, if
any party needs to conduct discovery in order to gather
evidence in relation to the motion for summary judgment, that
party will need to file a motion to allow discovery.
AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
to Rand v. Rowland, 154 F.3d 952, the Court hereby
notifies Plaintiff of the following rights and requirements
for opposing Defendant's motion for summary judgment.
The Court has converted Defendant's motion to dismiss
into a motion for summary judgment. The motion for summary
judgment seeks to have your case dismissed. A motion for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a
motion for summary judgment. Generally, summary judgment must
be granted when there is no genuine issue of material fact-
that is, if there is no real dispute about any fact that
would affect the result of your case, the party who asked for
summary judgment is entitled to judgment as a matter of law,
which will end your case. When a party you are suing makes a
motion for summary judgment that is properly supported by
declarations (or other sworn testimony), you cannot simply
rely on what your complaint says. Instead, you must set out
specific facts in declarations, depositions, answers to
interrogatories, or authenticated documents, as provided in
Rule [56(c)], that contradict the facts shown in
Defendant's declarations and documents and show that
there is a genuine issue of material fact for trial. If you
do not submit your own evidence in opposition, summary
judgment, if appropriate, may be entered against you. If
summary judgment is granted, your case will be dismissed and
there will be no trial.
DISTRICT OF CALIFORNIA LOCAL RULE REQUIREMENTS
responsible for filing all evidentiary documents cited in the
opposing papers. Local Rule 260(b). If additional discovery
is needed to oppose summary judgment, Local Rule 260(b)
requires you to “provide a specification of the
particular facts on which discovery is to be had or ...