Free Order - District Court of Arizona - Arizona

SRM

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Case 2:04-cv-00603-PGR-VAM Document 311 - Filed 10/27/2005 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Barry Northcross Patterson, Plaintiff -vsN. Nelson, et al., Defendant(s) CV-04-0603-PHX-PGR (VAM) ORDER

STATUS OF BRIEFING Under consideration is Defendant Kane's Rule 12(b) Motion to Dismiss, filed March 24, 2005 (#15). Plaintiff has filed a Response (#16). Defendant has filed a Original Declaration Signatures (#17) and a Reply entitled Supplemental Authority (#20). Plaintiff has also filed a Reply to Supplemental Authority (#21). Defendant argues that while Plaintiff did pursue administrative remedies, by filing inmate grievance A14-242-02 on September 13, 2002, Plaintiff did not exhaust his remedies by appealing the denial to the next and highest level, the Director of the Arizona Department of Corrections. Defendant argues that this necessitates dismissal of the Complaint.

Defendant attaches various declarations and exhibits in support of his motion. Plaintiff filed his Response (#16) on March 31, 2005. Plaintiff's response offers no exhibits, declarations, affidavits, or other evidence to establish exhaustion. "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 1108, 1119-1120 (9th Cir. 2003). However, "if the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust--a procedure closely analogous to summary judgment--then the court must assure that [the pro

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se litigant] has fair notice of his opportunity to develop a record." Id. at 1120, n. 14. But see Pliler v. Ford, 542 U.S. - - - , 124 S.Ct. 2441, 2446 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."). Here, Plaintiff filed his response within one week of the filing of the motion. No warning or instructions were issued by the Court prior to that time, and none thereafter. The requirements of Wyatt do not permit the Court to decide the motion at this juncture. Rather than further confuse an already confused set of briefings, the Court will strike Plaintiff's responses as premature, and permit Plaintiff to re-file a response. The matter will be again referred to the magistrate judge for completion of briefing, and adjustment of the supplemental briefing schedule established herein as may be necessary. SUPPLEMENTAL BRIEFING NOTICE - WARNING TO PLAINTIFF - Defendants have filed a Motion to Dismiss (#15) the complaint. Defendants' motion to dismiss seeks to have your case dismissed. Their motion will, if granted, end your case. Plaintiff is advised of the following specific provisions of Local Civil Rule 7.2, Rules of Practice of the United States District Court for the District of Arizona: (e) Length of Motions and Memoranda. Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a reply including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. *** (i) Briefs or Memoranda of Law; Effect of Non-Compliance. If a motion does not conform in all substantial respects with the requirements of this Rule, or if the opposing party does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the . . . granting of the motion and the court may dispose of the motion summarily. Because Defendants' Motion to Dismiss seeks dismissal of your Complaint for your failure to exhaust all available administrative remedies as required by 42 U.S.C. § 1997e(a), the Court may consider sworn declarations or other admissible documentary evidence beyond your Complaint. Moreover, if Defendants produce admissible evidence demonstrating that you failed to exhaust your administrative remedies, your Complaint will be dismissed
Document 312 - Filed 10/27/2005 Page 2 of 3

Case 2:04-cv-00603-PGR-VAM

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without prejudice unless you produce copies of your grievances and grievance appeals or other admissible evidence sufficient to show that you did exhaust all available administrative remedies. See Wyatt, 315 F.3d 1108. IT IS THEREFORE ORDERED that Plaintiff's Response to the Motion to Dismiss, filed March 31, 2005 (#16) and Reply to Supplemental Authority filed May 4, 2005 (#21) shall be STRICKEN. IT IS FURTHER ORDERED that: 1. Response - Plaintiff shall have twenty days from the filing of this Order within which to respond to Defendants' Motion to Dismiss the complaint, filed March 24, 2005 (#15). 2. Reply - Defendants shall have ten days from service of the responsive

memorandum within which to file a reply. IT IS FURTHER ORDERED that Defendant Kane's Rule 12(b) Motion to Dismiss, filed March 24, 2005 (#15) is again referred to Magistrate Judge Mathis for completion of supplemental briefing. DATED this 26th day of October, 2005.

Case 2:04-cv-00603-PGR-VAM

Document 313 - Filed 10/27/2005 -

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