Mowry #159208 v. Knight et al
Filing
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ORDER withdrawing the reference to the Magistrate Judge as to Defendants' 12 Motion to Dismiss and it is denied without prejudice to refiling as a summary judgment motion. ORDERED that Defendants' 37 Motion to Strike Plaintiff's Sur-Reply is denied as moot. Signed by Senior Judge Stephen M McNamee on 4/17/2014.(LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Arron Eugene Mowry,
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No. CV 13-2053-PHX-RCB (SPL)
Plaintiff,
vs.
ORDER
Unknown Knight, et al.,
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Defendants.
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Before the Court is a Motion to Dismiss filed by Defendants Knight and Evans
(Doc. 12). The motion will be denied without prejudice to refiling.
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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 (9th Cir. April 3, 2014), overruling Wyatt v. Terhune, 315 F.3d 1108,
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1119-20 (9th Cir. 2003).
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The pending Motion to Dismiss for failure to exhaust was filed as an
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unenumerated Rule 12(b)(b) motion. Consequently, Plaintiff was not on notice of the
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standard to be applied to the exhaustion issue, nor was he apprised of the requirements
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under Federal Rule of Civil Procedure 56 and Local Rule of Civil Procedure 56.1. See
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Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc) (upon the filing of a
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summary judgment motion, a pro se prisoner must be given notice of the requirements
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under Rule 56). In addition, the Motion to Dismiss does not conform to the Local Rules
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governing summary judgment.
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construe Defendants’ motion as one under Rule 56. Because neither party had the benefit
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of the Albino decision, the motion will be denied without prejudice to refiling as a
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summary judgment motion.
See LRCiv 56.1.
The Court therefore declines to
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IT IS ORDERED withdrawing the reference to the Magistrate Judge as to
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Defendants’ Motion to Dismiss (Doc. 12) and it is denied without prejudice to refiling as
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a summary judgment motion.
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IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s SurReply (Doc. 37) is denied as moot.
DATED this 17th day of April, 2014.
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