Chacon v. Cerrini, et al.

Filing 45

ORDER re 44 Defendants' Notice of Withdrawal of Motion; ORDER Withdrawing Defendants' 39 Motion to Dismiss from the Court's Calendar, ORDER Vacating 43 Order Issued on March 25, 2014; ORDER for Defendants to File New Response to First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 05/07/14. Thirty-Day Deadline. (Gonzalez, R)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11

ORDER RE DEFENDANTS’ NOTICE OF
WITHDRAWAL OF MOTION
(Doc. 44.)

Plaintiff,

12
13

1:11-cv-01689-AWI-GSA-PC

EDIN A. CHACON,

vs.

ORDER WITHDRAWING DEFENDANTS’
MOTION TO DISMISS FROM THE
COURT’S CALENDAR
(Doc. 39.)

J. CERRINI, et al.,

14

Defendants.

15

ORDER VACATING ORDER ISSUED ON
MARCH 25, 2014
(Doc. 43.)

16
17

ORDER FOR DEFENDANTS TO FILE
NEW RESPONSE TO FIRST AMENDED
COMPLAINT WITHIN THIRTY DAYS

18
19
20

I.

BACKGROUND

21

Edin A. Chacon (APlaintiff@) is a former state prisoner proceeding pro se and in forma

22

pauperis in this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the

23

Complaint commencing this action on January 10, 2011. (Doc. 1.) This case now proceeds on

24

Plaintiff’s First Amended Complaint filed on May 3, 2012, against defendants Correctional

25

Officer (C/O) T. Crouch, Lieutenant J. Tyree, C/O Rivera, and IGI Adame (collectively,

26

“Defendants”), for retaliation in violation of the First Amendment. (Doc. 22.)

27

On February 13, 2014, defendants Tyree and Rivera filed an unenumerated Rule 12(b)

28

motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative
1

1

remedies for the claims against them. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). (Doc. 39.)

2

On March 25, 2014, the court issued an order requiring Plaintiff to file a response to the motion

3

to dismiss within thirty days. (Doc. 43.) Plaintiff has not yet filed a response to the motion.

4

On May 6, 2014, defendants Tyree and Rivera filed a Notice of Withdrawal of their

5

motion to dismiss. (Doc. 44.)

6

II.

NOTICE OF WITHDRAWAL

7

Defendants Tyree and Rivera have filed a notice of withdrawal of their motion to

8

dismiss, in light of the Ninth Circuit’s recent decision in Albino v. Baca, No. 10-55702, 2014

9

WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Defendants request fourteen days in

10

which to file an answer to the complaint. Defendants also request that the court grant them

11

thirty days from the date the court issues its discovery and scheduling order, in which to file a

12

motion for summary judgment based on Plaintiff’s failure to exhaust administrative remedies as

13

to defendants Tyree and Rivera.

14

Discussion

15

On April 3, 2014, the Ninth Circuit Court of Appeals issued its ruling in Albino,

16

overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), finding that exhaustion

17

issues are more appropriately handled under the Federal Rules’ explicit provisions, and

18

requiring Defendants to raise the exhaustion defense under Federal Rule of Civil Procedure 56,

19

via a motion for summary judgment. Albino at *1.

20

In light of the Ninth Circuit’s decision in Albino, and good cause appearing, D

21

defendants Tyree and Rivera’s motion to dismiss of February 13, 2014 shall be withdrawn from

22

the court’s calendar. Defendants shall be allowed thirty days in which to file a new response to

23

the complaint. In addition, upon issuance of a scheduling order in this action at a later stage of

24

the proceedings, Defendants shall be allowed ample time to file a motion for summary

25

judgment based on Plaintiff’s failure to exhaust administrative remedies.1

26

///

27
28

1

As a rule, the court’s new scheduling order allows three months for the filing of motions for summary
judgment under Fed. R. Civ. P. 56 for failure to exhaust administrative remedies.
2

1

IV.

CONCLUSION

2

Based on the foregoing, IT IS HEREBY ORDERED that:

3

1.

WITHDRAWN from the court’s calendar;

4
5

Defendants Tyree and Rivera’s motion to dismiss filed on February 13, 2014, is

2.

The court’s order of March 25, 2014, which required Plaintiff to file an

6

opposition to defendants Tyree and Rivera’s motion to dismiss of February 13,

7

2014 within thirty days, is VACATED; and

8

3.

9

Defendants are granted thirty (30) days from the date of service of this order
within which to file a new response to the First Amended Complaint.

10
11
12
13

IT IS SO ORDERED.
Dated:

May 7, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22

23
24
25
26
27
28
3