The following excerpt is from Savoy v. Schlachter, No. 2:13-cv-0014 JAM AC P (E.D. Cal. 2013):
In deciding a motion to dismiss for failure to exhaust, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20. Thus, the parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Id. at 1120 n.14. Plaintiff was provided with such notice on January 31, 2013 and again contemporaneously with the filing of the motion to dismiss on June 10, 2013. ECF Nos. 9, 19. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012).
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