Free Order - District Court of Arizona - Arizona

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Case 2:03-cv-02178-PGR-MHB Document 57 Filed 01/04/2007 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barry Northcross Patterson, Plaintiff, vs.

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No. CV 03-2178-PHX-PGR (VAM) ORDER

In this state prisoner's civil rights action, the Court dismissed Count VI and VII for lack of exhaustion (Doc. #49). On appeal, the Ninth Circuit Court of Appeals affirmed the dismissal of Count VII but reversed and remanded as to Count VI, which concerned deductions to Plaintiff's trust fund account (Doc. #56). The claim had been dismissed because (1) Plaintiff had not developed any details regarding who told him that the issue was not grievable; (2) Plaintiff had previously grieved an issue regarding trust account deductions; and (3) Plaintiff's contention that the grievance system was futile did not excuse the exhaustion requirement (Doc. #49). The Court of Appeals remanded for the Court to consider this claim in light of a supervening decision, Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005), which held that a prisoner need not press on to further levels of review once he was reliably informed by an administrator that no remedies are available (Doc. #56).

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In light of this remand, the Court will allow the parties additional time to brief this issue. Defendants will have 30 days from the date of entry of this Order to file a motion to dismiss pursuant to Rule 12(b). Plaintiff will have 30 days to respond, and Defendants will have 15 days to reply. Plaintiff is not a novice litigator, but the Court nevertheless warns him that when deciding a motion to dismiss for failure to exhaust, the Court may consider evidence beyond Plaintiff's complaint, including sworn declarations and other admissible documentary evidence. Moreover, if Defendants produce admissible evidence demonstrating that Plaintiff failed to exhaust Count VI, that count will be dismissed without prejudice unless Plaintiff's response includes admissible evidence sufficient to show that he exhausted all available administrative remedies or that no administrative remedies were available to him. Types of admissible evidence may include copies of your grievances, grievance responses and sworn declarations. Additionally, Plaintiff must comply with the following provisions of Rule 7.2 of the Local Rules of Civil Procedure: (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 Local Rule, or if the unrepresented party or counsel does not serve and file the required answering memoranda, or if the unrepresented party or counsel fails to appear at the time and place assigned for oral argument, such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily. LRCiv 7.2. Plaintiff's response must be timely, and the Court may, in its discretion, treat a failure to respond as a consent to the granting of the dismissal motion without further notice, and judgment may be entered dismissing this action without prejudice pursuant to Rule 7.2(i) of the Local Rules of Civil Procedure. See Brydges v. Lewis, 18 F.3d 651 (9th Cir. 1994) (per curiam). -2Document 57 Filed 01/04/2007 Page 2 of 3

Case 2:03-cv-02178-PGR-MHB

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IT IS ORDERED: 1. Defendants have 30 days from the date of entry of this Order to file a Motion to Dismiss Count VI for lack of exhaustion. 2. Plaintiff must file a response to the motion, together with copies of grievances, sworn declarations or other admissible evidence, within 30 days after the date of service of the motion. 3. Defendants may file a reply within 15 days after service of Plaintiff's response. 4. The Motion to Dismiss will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court. DATED this 3rd day of January, 2007.

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