1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 GABRIEL D. SIMMONS, 7 Case No. 22-cv-01851-AMO (PR) Plaintiff, 8 ORDER REOPENING ACTION AND v. SETTING BRIEFING SCHEDULE 9 M. AVILA, 10 Defendant. 11

12 The parties’ attempts to settle this matter in global settlement proceedings have not been 13 successful. Dkt. 34. Therefore, pursuant to its August 4, 2023 Order, the Court shall enter a new 14 scheduling order for further proceedings. Dkt. 25 at 2. The parties shall abide by the briefing 15 schedule outlined below. 16 CONCLUSION 17 For the foregoing reasons, the Court orders as follows: 18 1. The Clerk of the Court shall REOPEN this action, which it had administratively 19 closed pursuant to the Court’s August 4, 2023 Order. 20 2. The following briefing schedule shall govern dispositive motions in this action: 21 a. No later than sixty (60) days from the date of this Order, the defendants 22 shall file a motion for summary judgment or other dispositive motion. The motion must be 23 supported by adequate factual documentation, must conform in all respects to Federal Rule of 24 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 25 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 26 so that the plaintiff will have fair, timely, and adequate notice of what is required of him in order 27 1 to oppose the motion. Woods v. Carey,

(9th Cir. 2012) (notice requirement set 2 out in Rand must be served concurrently with motion for summary judgment). A motion to 3 dismiss for failure to exhaust available administrative remedies must be accompanied by a similar 4 notice. However, the Court notes that under the new law of the circuit, in the rare event that a 5 failure to exhaust is clear on the face of the complaint, the defendants may move for dismissal 6 under Rule 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 7 12(b) motion. Albino v. Baca,

(9th Cir. 2014) (overruling Wyatt v. Terhune, 8

(9th Cir. 2003), which held that failure to exhaust available administrative 9 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a 10 defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear 11 on the face of the complaint, the defendants must produce evidence proving failure to exhaust in a 12 motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most 13 favorable to the plaintiff shows a failure to exhaust, the defendants are entitled to summary 14 judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be 15 denied and the district judge rather than a jury should determine the facts in a preliminary 16 proceeding. Id. at 1168. 17 If the defendants are of the opinion that this case cannot be resolved by summary 18 judgment, the defendants shall so inform the Court prior to the date the summary judgment motion 19 is due. All papers filed with the Court shall be served promptly on the plaintiff. 20 b. The plaintiff’s opposition to the dispositive motion shall be filed with the 21 Court and served on the defendants no later than twenty-eight (28) days after the date on which 22 the defendants’ motion is filed. 23 c. The plaintiff is advised that a motion for summary judgment under Rule 56 24 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 25 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 26 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 27 any fact that would affect the result of your case, the party who asked for summary judgment is 1 makes a motion for summary judgment that is supported properly by declarations (or other sworn 2 testimony), you cannot rely simply on what your complaint says. Instead, you must set out 3 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 4 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 5 documents and show that there is a genuine issue of material fact for trial. If you do not submit 6 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 7 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 8 F.3d at 962-63. 9 The plaintiff also is advised that—in the rare event that the defendants argue that the 10 failure to exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust 11 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit 12 without prejudice. To avoid dismissal, you have the right to present any evidence to show that 13 you did exhaust your available administrative remedies before coming to federal court. Such 14 evidence may include: (1) declarations, which are statements signed under penalty of perjury by 15 you or others who have personal knowledge of relevant matters; (2) authenticated documents— 16 documents accompanied by a declaration showing where they came from and why they are 17 authentic, or other sworn papers such as answers to interrogatories or depositions; and 18 (3) statements in your complaint insofar as they were made under penalty of perjury and show that 19 you have personal knowledge of the matters state therein. As mentioned above, in considering a 20 motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary 21 judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide 22 disputed issues of fact with regard to this portion of the case. Albino,

. 23 The notices above do not excuse the defendants’ obligation to serve similar notices again 24 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 25 motions for summary judgment. Woods,

. 26 d. The defendants shall file a reply brief no later than fourteen (14) days after 27 the date the plaintiff’s opposition is filed. 1 No hearing will be held on the motion unless the Court so orders at a later date. 2 3. Discovery may be taken in this action in accordance with the Federal Rules of Civil 3 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to the defendants to 4 || depose the plaintiff and any other necessary witnesses confined in prison. 5 4. All communications by the plaintiff with the Court must be served on the 6 || defendants’ counsel by mailing a true copy of the document to them. 7 5. It is the plaintiffs responsibility to prosecute this case. The plaintiff must keep the 8 || Court informed of any change of address and must comply with the Court’s orders in a timely 9 fashion. Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address 10 || changes while an action is pending must file a notice of change of address promptly, specifying 11 the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: 12 (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, 5 13 and (2) the Court fails to receive within sixty days of this return a written communication from the 14 || pro se party indicating a current address. See L.R. 3-11(b). 15 6. Any party seeking an extension of a court deadline must seek an extension at least 16 || seven (7) days prior to the deadline by filing an appropriate motion or stipulation, in compliance 3 17 with the Civil Local Rules. IT IS SO ORDERED. 19 Dated: February 23, 2024 20 . 21 { Nnacek: ake ARACELI MARTINEZ-OLGUIN 22 United States District Judge 23 24 25 26 27 28