Serrano v. Rawers et al

Filing 28

ORDER (1) Denying 21 Unenumerated Rule 12(b) Motion Without Prejudice, (2) Denying Defendant's Motion for an Extension of Time as Moot, and (3) Requiring Defendant to File Responsive Pleading or Motion Within Thirty Days, signed by Magistrate Judge Michael J. Seng on 05/12/14. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSIE L. SERRANO,
Plaintiff,

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Case No. 1:11-cv-0399-MJS (PC)
ORDER (1) DENYING UNENUMERATED
RULE 12(b) MOTION WITHOUT
PREJUDICE, (2) DENYING
DEFENDANT’S MOTION FOR AN
EXTENSION OF TIME AS MOOT, AND (3)
REQUIRING DEFENDANT TO FILE
RESPONSIVE PLEADING OR MOTION
WITHIN THIRTY DAYS

v.
SCOTT RAWERS, et al.,
Defendants.

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(ECF Nos. 21, 26)
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Plaintiff Jessie L. Serrano, a state prisoner proceeding pro se and in forma pauperis,
filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter proceeds on an Eighth
Amendment failure to protect claim against Defendant Lucas.
On November 25, 2013, Defendant Lucas filed a motion to dismiss the action under
the unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure to exhaust
administrative remedies.

(ECF No. 21); 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b).

Defendant also filed a motion for an extension of time to reply to Plaintiff’s opposition to the
motion to dismiss. (ECF No. 26.)
On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a
decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to
the proper procedural device for raising the issue of administrative exhaustion. Albino v.
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Baca, No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following

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

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

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

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*4. An unenumerated Rule 12(b) motion is no longer the proper procedural device for

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raising the issue of exhaustion. Id.

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For the reasons stated, the unenumerated Rule 12(b) motion is procedurally

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deficient in light of the decision in Albino. The unenumerated Rule 12(b) motion shall be

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denied, without prejudice, on procedural grounds. Accordingly, Defendant’s motion for an

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extension of time should also be denied as moot.

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Accordingly, for the reasons stated, it is HEREBY ORDERED that:

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1.

is DENIED, without prejudice, on procedural grounds,

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2.

Defendant’s motion for an extension of time filed March 21, 2014 (ECF No.
26) is DENIED as moot; and

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The unenumerated Rule 12(b) motion filed November 25, 2013 (ECF No. 21)

3.

Defendant shall, within thirty (30) days from the date of service of this order
file a responsive pleading or motion.

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IT IS SO ORDERED.
Dated:

May 12, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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