Gomez v. Alameida, et al

Filing 106

ORDER Granting Defendant's Ex Parte Application for Leave to Argue Lack of Exhaustion in Motion for Summary Judgment 88 ; ORDER Extending Deadline to File Unenumerated 12(b) Motions Nunc Pro Tunc to August 20, 2012, signed by Magistrate Judge Gary S. Austin on 1/22/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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vs.
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EDWARD S. ALAMEIDA, JR., et al.,
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Defendants.
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____________________________________)

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I.

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JEFFREY KEVIN GOMEZ,

1:04-cv-05495-LJO-GSA-PC
ORDER GRANTING DEFENDANT'S EX
PARTE APPLICATION FOR LEAVE TO
ARGUE LACK OF EXHAUSTION IN
MOTION FOR SUMMARY JUDGMENT
(Doc. 88.)
ORDER EXTENDING DEADLINE TO
FILE UNENUMER ATED 1 2 (b )
MOTIONS NUNC PRO TUNC TO
AUGUST 20, 2012

BACKGROUND

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Jeffrey Kevin Gomez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds with Plaintiff’s

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Fourth Amended Complaint filed on August 14, 2009, against defendant D. Ortiz (“Defendant”) for

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retaliation in violation of the First Amendment.1 (Doc. 46.) On August 20, 2012, Defendant filed a

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motion for summary judgment, together with an ex parte application for leave to argue lack of

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exhaustion of administrative remedies in the motion for summary judgment. (Docs. 88, 89.)

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On February 24, 2011, the Court dismissed all other claims and defendants from this action, based on lack
of venue, violation of Rule 18, and failure to state a claim upon which relief may be granted. (Doc. 52.)

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Defendant's ex parte application for leave to argue lack of exhaustion of administrative remedies

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is now before the Court. Plaintiff has not filed an opposition.

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II.

DEFENDANT'S REQUEST TO BRING MOTION FOR FAILURE TO EXHAUST

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A.

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Defendant requests leave to bring a motion for failure to exhaust remedies after the deadline set

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by the Court's scheduling order of September 8, 2011. Therefore, the Court first addresses Defendant's

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request to modify the scheduling order.

Motion to Modify Scheduling Order

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Legal Standard

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and

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good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling order

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must generally show that even with the exercise of due diligence, they cannot meet the requirement of

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the order. Id. The court may also consider the prejudice to the party opposing the modification. Id. If

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the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and

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the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d

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1080, 1087 (9th Cir. 2002).

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Defendant's Request

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Defendant requests modification of the Court's scheduling order, to extend the deadline for filing

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unenumerated 12(b) motions for leave to exhaust administrative remedies. On September 8, 2011, the

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Court issued a discovery and scheduling order which established a deadline of November 8, 2011, for

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the filing of unenumerated 12(b) motions. (Declaration of M. Wrosch at ¶4; Court Doc. 76.) At that

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time, Defendant's counsel M. Kosla erroneously believed that Plaintiff had exhausted administrative

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remedies, and thus did not file an unenumerated 12(b) motion. (Id. at ¶5.) On or about July 13, 2012,

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this matter was transferred to Defendant's current counsel M. Wrosch. (Id. at ¶6.) In preparation for

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filing a motion for summary judgment, Defendant's current counsel determined that Plaintiff did not file

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any appeal alleging that Defendant placed him in the SHU in retaliation for submitting administrative

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appeals. (Id. at ¶7.) Defendant argues that under the circumstances, the deadline should be extended

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so that a potentially dispositive issue can be addressed now, as opposed to later at trial, should

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Defendant's summary judgment motion be denied.

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Discussion

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Defendant has shown good cause for modification of the Court's scheduling order to extend the

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deadline for the filing of unenumerated 12(b) motions. Defendant has shown that, due to a decision

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made before he was assigned as Defendant's counsel, he was unable to file an unenumerated 12(b)

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motion before the deadline established by the Court’s scheduling order, despite his due diligence.

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Therefore, Defendant's request to modify the scheduling order shall be granted, and the deadline for

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filing unenumerated 12(b) motions shall be extended nunc pro tunc to August 20, 2012.

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B.

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Defendant also requests leave to address Plaintiff's failure to exhaust administrative remedies

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Request to Argue Failure to Exhaust in Motion for Summary Judgment

in the motion for summary judgment filed on August 20, 2012.

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Legal Standard

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The Ninth Circuit has held that "the failure to exhaust nonjudicial remedies that are not

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jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b)

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motion rather than a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

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2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir.1988)

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(per curiam); see also Inlandboatmens Union of the Pac. v. Dutra Group, 279 F.3d 1075, 1078 n.1,

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1083–84 (9th Cir.2002); Stauffer Chem. Co. v. FDA, 670 F.2d 106, 108 (9th Cir.1982); Studio Elec.

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Technicians Local 728 v. Int'l Photographers of the Motion Picture Indus. Local 659, 598 F.2d 551, 552

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n.2 (9th Cir.1979)). "These decisions are based on the general principle that “[s]ummary judgment is

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on the merits,” Stauffer Chem., 670 F.2d at 108, whereas dismissal of an action on the ground of failure

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to exhaust administrative remedies is not on the merits.'" Id. (quoting Heath v. Cleary, 708 F.2d 1376,

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1380 n.4 (9th Cir.1983)). The distinction between summary judgment and dismissal for matters in

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abatement bears on the district court's authority to resolve factual disputes and thus affects the standard

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of review to be applied by [the] court. Ritza, 837 F.2d at 369 (in ruling on motion for summary

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judgment, court should not resolve material factual issues, whereas with matters in abatement, the court

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has discretion to resolve factual disputes). It is error for a court to review an affirmative defense of

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nonexhaustion under the summary judgment standard. See Albino v. Baca, 697 F.3d 1023, 1029 (9th

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Cir. 2012). However, a court may properly treat a summary judgment motion as a motion to dismiss

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when the summary judgment motion seeks dismissal of § 1983 claims based on alleged failure to

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exhaust. Id.

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Defendant's Request

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Defendant requests leave of this Court to present an argument in his summary judgment motion

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regarding Plaintiff's failure to exhaust administrative remedies, in an attempt to address a potentially

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dispositive issue now, as opposed to later at trial, should Defendant's summary judgment motion be

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denied.

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Discussion

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Defendant filed his pending summary judgment motion on August 20, 2012, arguing that (1)

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Plaintiff's cause of action for a First Amendment violation fails as a matter of law; that (2) Defendant

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is entitled to qualified immunity; and also arguing that (3) Defendant did not exhaust his administrative

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remedies prior to filing suit. (Doc. 89.) On October 15, 2012, Plaintiff filed an opposition to the motion,

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addressing all three of Defendant's arguments. (Doc. 96.) On October 22, 2012, Defendant filed a reply

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to Plaintiff's opposition. (Doc. 100.)

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In the interest of judicial economy, and good cause appearing, the Court shall allow Defendant

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to address Plaintiff's failure to exhaust administrative remedies in his pending motion for summary

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judgment. The Court shall treat Defendant's motion concerning failure to exhaust as an unenumerated

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12(b) motion to dismiss, separate and apart from Defendant's arguments in support of summary

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judgment. Accordingly, Defendant's ex parte application shall be granted.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant's ex parte application, filed on August 20, 2012, is GRANTED;

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The deadline for filing unenumerated 12(b) motions, established by the Court's

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scheduling order of September 8, 2011, is extended nunc pro tunc to August 20, 2012;
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and

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Defendant is granted leave to argue Plaintiff's failure to exhaust administrative remedies
in his motion for summary judgment filed on August 20, 2012.

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IT IS SO ORDERED.

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Dated:
6i0kij

January 22, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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