Mowry #159208 v. Knight et al

Filing 38

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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