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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
ALVARO QUEZADA,
12
Plaintiff,
13
14
v.
R. LINDSEY, et al.,
15
Defendants.
16
17
18
)
)
)
)
)
)
)
)
)
)
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.
19
This action is proceeding on Plaintiff’s first amended complaint against (1) Defendants R.
20
Lindsey and P. Gonzalez for conditions of confinement in violation of the Eighth Amendment; (2)
21
Defendant I. Patel for deliberate indifference to a serious medical need, in violation of the Eighth
22
Amendment; and (3) Defendants R. Lindsey and K.J. Doran for retaliation, in violation of the First
23
Amendment.
24
On October 31, 2013, Defendants K.J. Doran and I. Patel filed an unenumerated Rule 12(b)
25
motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative remedies.
26
42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on November 21, 2013, and
27
Defendants filed a reply on December 2, 2013.
28
On December 16, 2013, Defendants P. Gonzalez and R. Lindsey also filed an unenumerated
1
1
Rule 12(b) motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative
2
remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on February 10,
3
2014, and Defendants filed a reply on February 20, 2014.
4
On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision
5
overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the proper
6
procedural device for raising the issue of administrative exhaustion. Albino v. Baca, No. 10-55702,
7
2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the decision in Albino,
8
Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule
9
12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion
10
for summary judgment.
Albino, 2014 WL 1317141, at *4 (quotation marks omitted).
11
unenumerated Rule 12(b) motion is no longer the proper procedural device for raising the issue of
12
exhaustion. Id.
13
Accordingly, in light of the decision in Albino, it is HEREBY ORDERED that:
14
1.
An
15
16
17
Defendants’ unenumerated Rule 12(b) motion is denied, without prejudice, on
procedural grounds; and
2.
Defendants have thirty (30) days from the date of service of this order within which to
file a responsive pleading or motion.
18
19
20
21
IT IS SO ORDERED.
Dated:
April 10, 2014
UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?