(PC) King v. Valley State Prison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALTON KING, 1:20-cv-00024-DAD-GSA-PC 12 Plaintiff, NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANTS’ MOTION FOR 13 vs. SUMMARY JUDGMENT 14 VALLEY STATE PRISON, et al., (ECF No. 22.) 15 Defendants. 16 17 Plaintiff Alton King is a state prisoner proceeding pro se and in forma pauperis with this 18 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s First 19 Amended Complaint filed on February 13, 2020, against defendants Warden Raythel Fisher, Jr. 20 and Culinary Staff Member Moosebaur for alleged violations of the RLUIPA, alleged violations 21 of the First Amendment Free Exercise Clause; and against defendant Warden Raythel Fisher, Jr. 22 for alleged adverse conditions of confinement in violation of the Eighth Amendment, and for 23 alleged failure to protect plaintiff in violation of the Eighth Amendment.1 (ECF No. 6.) 24 On January 14, 2022, Defendants Fisher and Moosebaur filed a motion for summary 25 judgment on the grounds that Plaintiff failed to exhaust his administrative claims against 26 Defendants as required by the Prison Litigation Reform Act. (ECF No. 22.) 27 28 1 On July 28, 2021, the court issued an order dismissing all other claims and defendants, based on Plaintiff’s failure to state a claim. (ECF No. 15.) 1 In the Ninth Circuit when the plaintiff is a prisoner proceeding pro se in a civil rights 2 case, and a defendant files a motion for summary judgment or a motion to dismiss for failure to 3 exhaust administrative remedies, the defendant or the court is required to provide plaintiff with 4 a Notice and Warning informing the plaintiff of his or her rights and responsibilities in opposing 5 the motion. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). The Court shall, by this order, 6 provide Plaintiff with the Notice and Warning. 7 NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE 8 TO EXHAUST ADMINISTRATIVE REMEDIES 9 RAND WARNING 10 The Defendants have filed a motion for summary judgment by which 11 they seek to dispose of your case. This motion for summary judgment will, 12 if granted, end your case. 13 In the event, such as here, that Defendants argue that you failed to 14 exhaust available administrative remedies under 42 U.S.C. § 1997e(a), a 15 motion for summary judgment will, if granted, end your case, albeit without 16 prejudice. To avoid dismissal, you have the right to present any evidence 17 to show that you did exhaust your available administrative remedies before 18 coming to federal court. Such evidence may include: (1) declarations, which 19 are statements signed under penalty of perjury by you or others who have 20 personal knowledge of relevant matters; (2) authenticated documents - 21 documents accompanied by a declaration showing where they came from 22 and why they are authentic, or other sworn papers such as answers to 23 interrogatories or depositions; (3) statements in your complaint insofar as 24 they were made under penalty of perjury and they show that you have 25 personal knowledge of the matters state therein. 26 In considering a motion for summary judgment for failure to 27 exhaust, the judge may hold a preliminary proceeding and decide disputed 28 1 issues of fact with regard to this portion of the case. Albino v. Baca, 747 2 F.3d 1162, 1168 (9th Cir. 2014). 3 (The notices above do not excuse Defendants’ obligation to serve 4 similar notices again concurrently with motions to dismiss for failure to 5 exhaust available administrative remedies and motions for summary 6 judgment. Woods, 684 F.3d at 935.) 7 8 IT IS SO ORDERED. 9 10 Dated: January 18, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28