Opinion
22-cv-01851-AMO (PR)
02-23-2024
GABRIEL D. SIMMONS, Plaintiff, v. M. AVILA, Defendant.
ORDER REOPENING ACTION AND SETTING BRIEFING SCHEDULE
ARACELI MARTÍNEZ-OLGUÍN UNITED STATES DISTRICT JUDGE
The parties' attempts to settle this matter in global settlement proceedings have not been successful. Dkt. 34. Therefore, pursuant to its August 4, 2023 Order, the Court shall enter a new scheduling order for further proceedings. Dkt. 25 at 2. The parties shall abide by the briefing schedule outlined below.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. The Clerk of the Court shall REOPEN this action, which it had administratively closed pursuant to the Court's August 4, 2023 Order.
2. The following briefing schedule shall govern dispositive motions in this action:
a. No later than sixty (60) days from the date of this Order, the defendants shall file a motion for summary judgment or other dispositive motion. The motion must be supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the events at issue. A motion for summary judgment also must be accompanied by a Rand notice so that the plaintiff will have fair, timely, and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand must be served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust available administrative remedies must be accompanied by a similar notice. However, the Court notes that under the new law of the circuit, in the rare event that a failure to exhaust is clear on the face of the complaint, the defendants may move for dismissal under Rule 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear on the face of the complaint, the defendants must produce evidence proving failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to the plaintiff shows a failure to exhaust, the defendants are entitled to summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168.
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
If the defendants are of the opinion that this case cannot be resolved by summary judgment, the defendants shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be served promptly on the plaintiff.
b. The plaintiff's opposition to the dispositive motion shall be filed with the Court and served on the defendants no later than twenty-eight (28) days after the date on which the defendants' motion is filed.
c. The plaintiff is advised that 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 supported properly by declarations (or other sworn testimony), you cannot rely simply 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 the defendants' 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. Rand, 154 F.3d at 962-63.
The plaintiff also is advised that-in the rare event that the defendants argue that the failure to exhaust is clear on the face of the complaint-a motion to dismiss for failure to exhaust available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without prejudice. To avoid dismissal, you have the right to present any evidence to show that you did exhaust your available administrative remedies before coming to federal court. Such evidence may include: (1) declarations, which are statements signed under penalty of perjury by you or others who have personal knowledge of relevant matters; (2) authenticated documents- documents accompanied by a declaration showing where they came from and why they are authentic, or other sworn papers such as answers to interrogatories or depositions; and (3) statements in your complaint insofar as they were made under penalty of perjury and show that you have personal knowledge of the matters state therein. As mentioned above, in considering a motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.
The notices above do not excuse the defendants' obligation to serve similar notices again concurrently with motions to dismiss for failure to exhaust available administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.
d. The defendants shall file a reply brief no later than fourteen (14) days after the date the plaintiff's opposition is filed.
e. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.
3. Discovery may be taken in this action in accordance with the Federal Rules of Civil
Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to the defendants to depose the plaintiff and any other necessary witnesses confined in prison.
4. All communications by the plaintiff with the Court must be served on the defendants' counsel by mailing a true copy of the document to them.
5. It is the plaintiff's responsibility to prosecute this case. The plaintiff must keep the
Court informed of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes while an action is pending must file a notice of change of address promptly, specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b).
6. Any party seeking an extension of a court deadline must seek an extension at least seven (7) days prior to the deadline by filing an appropriate motion or stipulation, in compliance with the Civil Local Rules.
IT IS SO ORDERED.