Feldmeier v. Hauser et al

Filing 17

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendants' 13 Motion to Dismiss. Defendants' 13 Motion to Dismiss is denied without prejudice to refiling. Signed by Judge David G Campbell on 5/7/2014.(LFIG)

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JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald M. Feldmeier,

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No. CV 13-2027-PHX-DGC (BSB)

Plaintiff,
vs.

ORDER

P. Hauser, et al.

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Defendants.

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Plaintiff Ronald M. Feldmeier brought this pro se civil rights action under 42

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U.S.C. § 1983 against P. Hauser and R. Williams, officers at the La Palma Correctional

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Center in Eloy, Arizona (Doc. 1). Before the Court is Defendants’ Motion to Dismiss for

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failure to exhaust administrative remedies (Doc. 13). Feldmeier opposes to the motion

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(Doc. 15). The Court will summarily deny the motion without prejudice to refiling.

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I.

Background

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In his Complaint, Feldmeier alleged that Defendants violated his Eighth

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Amendment rights when they failed to protect him from an assault by his cell mate

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(Doc. 1). Defendants moved to dismiss the Complaint on the ground that Feldmeier

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failed to exhaust administrative remedies as required under the Prison Litigation Reform

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Act, 42 U.S.C. § 1997e(a) (Doc. 13, Exs. A-B). The Court issued a Notice to Feldmeier

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informing him of the consequences if a motion to dismiss under Federal Rule of Civil

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Procedure 12(b) is granted (Doc. 14). The Court received Feldmeier’s response on

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April 1, 2014 (Doc. 15).

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II.

Exhaustion

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In a recent decision, the Ninth Circuit held that the failure-to-exhaust defense must

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be raised by summary judgment; it is no longer considered a matter of abatement to be

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raised in an unenumerated Rule 12(b) motion. Albino v. Baca, --- F.3d ----, 2014 WL

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1317141, at *1, 4 (9th Cir. April 3, 2014), overruling Wyatt v. Terhune, 315 F.3d 1108

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(9th Cir. 2003). The pending Motion to Dismiss for failure to exhaust was filed as an

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unenumerated Rule 12(b)(b) motion (Doc. 13 at 5).1 Consequently, Feldmeier was not on

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notice that the summary judgment standard would apply to the exhaustion issue, nor was

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he apprised of the requirements under Federal Rule of Civil Procedure 56 and Local Rule

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of Civil Procedure 56.1. See Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en

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banc) (upon the filing of a summary judgment motion, a pro se prisoner must be given

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notice of the requirements under Rule 56). In addition, the Motion to Dismiss does not

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conform to the Local Rules governing summary judgment. See LRCiv 56.1. The Court

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therefore declines to construe Defendants’ motion as one under Rule 56. Because neither

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party had the benefit of the Albino decision, the motion will be denied without prejudice

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to refiling.

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion
to Dismiss (Doc. 13).

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In their reply, Defendants acknowledge the recent Albino decision but request
that the Court decide their motion under the Wyatt standard (Doc. 16 at 1 n. 1). That
request is denied.
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(2) Defendants’ Motion to Dismiss (Doc. 13) is denied without prejudice to
refiling.
Dated this 7th day of May, 2014.

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