Quezada v. Lindsey et al

Filing 45

ORDER DENYING Unenumerated Rule 12(b) Motion (Docs. 32 & 37 ), Without Prejudice, on Procedural Grounds and Requiring Defendants to File Responsive Pleading or Motion Within Thirty Days, signed by Magistrate Judge Stanley A. Boone on 4/10/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALVARO QUEZADA,

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Plaintiff,

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v.
R. LINDSEY, et al.,

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Defendants.

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Case No.: 1:10-cv-01402-AWI-SAB (PC)
ORDER DENYING UNENUMERATED RULE
12(B) MOTION, WITHOUT PREJUDICE, ON
PROCEDURAL GROUNDS AND REQUIRING
DEFENDANTS TO FILE RESPONSIVE
PLEADING OR MOTION WITHIN THIRTY
DAYS
[ECF Nos. 32, 37]

Plaintiff Alvaro Quezada is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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This action is proceeding on Plaintiff’s first amended complaint against (1) Defendants R.

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Lindsey and P. Gonzalez for conditions of confinement in violation of the Eighth Amendment; (2)

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Defendant I. Patel for deliberate indifference to a serious medical need, in violation of the Eighth

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Amendment; and (3) Defendants R. Lindsey and K.J. Doran for retaliation, in violation of the First

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Amendment.

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On October 31, 2013, Defendants K.J. Doran and I. Patel filed an unenumerated Rule 12(b)

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motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative remedies.

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42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on November 21, 2013, and

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Defendants filed a reply on December 2, 2013.

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On December 16, 2013, Defendants P. Gonzalez and R. Lindsey also filed an unenumerated
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Rule 12(b) motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative

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remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on February 10,

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2014, and Defendants filed a reply on February 20, 2014.

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On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision

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overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the proper

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procedural device for raising the issue of administrative exhaustion. Albino v. Baca, No. 10-55702,

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2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the decision in Albino,

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Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule

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12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion

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for summary judgment.

Albino, 2014 WL 1317141, at *4 (quotation marks omitted).

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unenumerated Rule 12(b) motion is no longer the proper procedural device for raising the issue of

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exhaustion. Id.

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Accordingly, in light of the decision in Albino, it is HEREBY ORDERED that:

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1.

An

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Defendants’ unenumerated Rule 12(b) motion is denied, without prejudice, on

procedural grounds; and
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Defendants have thirty (30) days from the date of service of this order within which to

file a responsive pleading or motion.

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IT IS SO ORDERED.
Dated:

April 10, 2014
UNITED STATES MAGISTRATE JUDGE

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