Bradley v. Villa et al

Filing 43

ORDER VACATING 41 Findings and Recommendations Entered on March 4, 2014; ORDER DISREGARDING 42 Plaintiff's Response to the Findings and Recommendations as MOOT signed by Magistrate Judge Gary S. Austin on 4/11/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BRADLEY,

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Plaintiff,

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v.
VILLA, et al.,
Defendants.

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1:10-cv-01618-LJO-GSA-PC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ENTERED ON
MARCH 4, 2014
(Doc. 41.)
ORDER DISREGARDING PLAINTIFF’S
RESPONSE TO THE FINDINGS AND
RECOMMENDATIONS AS MOOT
(Doc. 42.)

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William Bradley (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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September 8, 2010. (Doc. 1.) This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on September 14, 2012, against defendant Correctional Officer (C/O) L. Villa for

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use of excessive force in violation of the Eighth Amendment, and against defendants Sergeant

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(Sgt.) J. Hightower, Lieutenant (Lt.) S. Henderson, and Captain (Cpt.) Wood (collectively, four

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“Defendants”) for failure to intercede and protect Plaintiff, in violation of the Eighth

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Amendment. (Doc. 19.)

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On October 11, 2013, Defendants filed an unenumerated Rule 12(b) motion to dismiss

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on the ground that Plaintiff failed to exhaust the available administrative remedies, together

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with a Rule 12(b)(6) motion to dismiss for failure to state a claim. (Doc. 29.) On November
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25, 2013, Plaintiff filed an opposition to the motions. (Doc. 34.) On December 18, 2013,

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Defendants filed a reply to Plaintiff’s opposition. (Doc. 38.) On March 4, 2014, findings and

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recommendations were entered, recommending that Defendants’ unenumerated Rule 12(b)

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motion be denied, and Defendants’ Rule 12(b)(6) motion be granted in part, with leave to

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amend. (Doc. 41.) The parties were granted thirty days in which to file objections to the

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findings and recommendations. (Id.) On March 26, 2014, Plaintiff filed a response to the

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findings and recommendations. (Doc. 42.)

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

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

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proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca,

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No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the

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decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion to

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dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of

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the complaint, or (2) a motion for summary judgment. Albino, 2014 WL 1317141, at *4

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(quotation marks omitted). An unenumerated Rule 12(b) motion is no longer the proper

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procedural device for raising the issue of exhaustion. Id.

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

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1.

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The findings and recommendations entered on March 4, 2014, are VACATED;
and

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Plaintiff’s response to the findings and recommendations, filed on March 26,
2014, is DISREGARDED as moot.

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IT IS SO ORDERED.
Dated:

April 11, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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