Mowry #159208 v. Knight et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Arron Eugene Mowry,
No. CV 13-2053-PHX-RCB (SPL)
Unknown Knight, et al.,
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.
In a recent decision, the Ninth Circuit held that the failure-to-exhaust defense must
be raised by summary judgment; it is no longer considered a matter of abatement to be
raised in an unenumerated Rule 12(b) motion. Albino v. Baca, --- F.3d ----, 2014 WL
1317141, at *1 (9th Cir. April 3, 2014), overruling Wyatt v. Terhune, 315 F.3d 1108,
1119-20 (9th Cir. 2003).
The pending Motion to Dismiss for failure to exhaust was filed as an
unenumerated Rule 12(b)(b) motion. Consequently, Plaintiff was not on notice of the
standard to be applied to the exhaustion issue, nor was he apprised of the requirements
under Federal Rule of Civil Procedure 56 and Local Rule of Civil Procedure 56.1. See
Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc) (upon the filing of a
summary judgment motion, a pro se prisoner must be given notice of the requirements
under Rule 56). In addition, the Motion to Dismiss does not conform to the Local Rules
governing summary judgment.
construe Defendants’ motion as one under Rule 56. Because neither party had the benefit
of the Albino decision, the motion will be denied without prejudice to refiling as a
summary judgment motion.
See LRCiv 56.1.
The Court therefore declines to
IT IS ORDERED withdrawing the reference to the Magistrate Judge as to
Defendants’ Motion to Dismiss (Doc. 12) and it is denied without prejudice to refiling as
a summary judgment motion.
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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