(PC) Zaiza v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ROBERTO ZAIZA, 1:19-cv-01476-DAD-GSA-PC 12 NOTICE AND WARNING OF Plaintiffs, REQUIREMENTS FOR OPPOSING 13 DEFENDANTS’ MOTION TO DISMISS vs. 14 (ECF No. 21.) CLARK, et al., 15 Defendants. 16 17 18 Jose Roberto Zaiza (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 20 Complaint commencing this action on October 17, 2019. (ECF No. 1.) This case now proceeds 21 with the First Amended Complaint filed on February 18, 2021, against defendants Ken Clark 22 (Warden), Captain J. Gallagher, and D. Baughman (CDCR Acting Associate Director) 23 (collectively, “Defendants”) for subjecting Plaintiff to adverse conditions of confinement in 24 violation of the Eighth Amendment. (ECF No. 13.) 25 On September 10, 2021, Defendants filed a motion to dismiss the complaint under Federal 26 Rule of Civil Procedure 12(b)(6), in part on the ground that on the face of the First Amended 27 Complaint, Plaintiff failed to exhaust his claims against Defendants as required by the Prison 28 Litigation Reform Act. (ECF No. 21.) Defendants also move to dismiss based on Plaintiff’s 1 failure to state an Eighth Amendment claim premised on inadequate living conditions (i.e. 2 inadequate outdoor exercise time). (Id.) Defendants further contend that they are entitled to 3 qualified immunity against Plaintiff’s Eighth Amendment claims, and that Plaintiff’s prayer for 4 punitive damages fails. (Id.) 5 In the Ninth Circuit, when the plaintiff is a prisoner proceeding pro se in a civil rights 6 case, and a defendant files a motion for summary judgment or a motion to dismiss for failure to 7 exhaust administrative remedied, the defendant or the court is required to provide plaintiff with 8 a Notice and Warning informing the plaintiff of his or her rights and responsibilities in opposing 9 the motion. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). The Court shall, by this order, 10 provide Plaintiff with the Notice and Warning. 11 NOTICE AND WARNING OF REQUIREMENTS FOR OPPOSING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST 12 ADMINISTRATIVE REMEDIES 13 RAND WARNING 14 The Defendants have made a motion to dismiss by which they seek to 15 dispose of your case. This motion to dismiss will, if granted, end your case. 16 In the rare event, such as here, that Defendants argue that the failure 17 to exhaust is clear on the face of the complaint - a motion to dismiss for 18 failure to exhaust available administrative remedies under 42 U.S.C. § 19 1997e(a) will, if granted, end your case, albeit without prejudice. To avoid 20 dismissal, you have the right to present any evidence to show that you did 21 exhaust your available administrative remedies before coming to federal 22 court. Such evidence may include: (1) declarations, which are statements 23 signed under penalty of perjury by you or others who have personal 24 knowledge of relevant matters; (2) authenticated documents - documents 25 accompanied by a declaration showing where they came from and why they 26 are authentic, or other sworn papers such as answers to interrogatories or 27 depositions; (3) statements in your complaint insofar as they were made 28 1 under penalty of perjury and they show that you have personal knowledge 2 of the matters state therein. 3 In considering a motion to dismiss for failure to exhaust under Rule 4 12(b)(6) the judge may hold a preliminary proceeding and decide disputed 5 issues of fact with regard to this portion of the case. Albino v. Baca, 747 6 F.3d 1162, 1168 (9th Cir. 2014). 7 (The notices above do not excuse Defendants’ obligation to serve 8 similar notices again concurrently with motions to dismiss for failure to 9 exhaust available administrative remedies and motions for summary 10 judgment. Woods, 684 F.3d at 935.) 11 IT IS SO ORDERED. 12 13 Dated: September 13, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28