Rodriguez v. CDCR Departmental Review Board et al

Filing 46

ORDER STRIKING 42 Unenumerated 12(B) Motion and REQUIRING Defendants to File Responsive Pleading; Thirty Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 4/9/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS V. RODRIGUEZ,
Plaintiff,

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v.
CDCR DEPARTMENTAL REVIEW
BOARD, et al.,

Case No. 1:12-cv-00757-AWI-JLT (PC)
ORDER STRIKING UNENUMERATED
RULE 12(B) MOTION AND REQUIRING
DEFENDANTS TO FILE RESPONSIVE
PLEADING
(Doc. 42)

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Defendants.

30 DAY DEADLINE

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Plaintiff, Louis V. Rodriguez, ("Plaintiff") a state prisoner proceeding pro se and in forma

18 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 9, 2012. This action is
19 proceeding on Plaintiff’s First Amended Complaint against Defendants Cox, Terrell, and Cavazos
20 ("Defendants") on an Eighth Amendment claim for the excessive use of force against Terrell and
21 Cavazos and on a First Amendment claim of retaliation against Cox, Terrell, and Cavazos.
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On February 25, 2014, Defendants filed an unenumerated Rule 12(b) motion to dismiss on

23 the ground that Plaintiff failed to exhaust the available administrative remedies. 42 U.S.C. §
24 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff requested and received an extension of time to file his
25 opposition which is not yet due. Local Rule 230(l).
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On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a

27 decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the
28 proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a).

1 Albino v. Baca, No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc).
2 Following the decision in Albino, Defendants may raise exhaustion deficiencies as an affirmative
3 defense under §1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)1 or (2) a
4 motion for summary judgment under Rule 56 if it has been pled and preserved. Albino, 2014 WL
5 1317141, at *4. An unenumerated Rule 12(b) motion is no longer the proper procedural device
6 for raising the affirmative defense of exhaustion. Id.
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Accordingly, in light of the decision in Albino, it is HEREBY ORDERED that:

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Defendants’ unenumerated Rule 12(b) motion is stricken from the record;2 and

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2.

Defendants have 30 days from the date of service of this order within which to file

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IT IS SO ORDERED.
Dated:

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April 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Motions to dismiss under Rule 12(b)(6) are only appropriate "[i]n the rare event a failure to exhaust is clear on the
face of the complaint." Albino, 2014 WL 1317141, at *1.
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District courts have broad discretion to control their own dockets, M. M. v. Lafayette School Dist., 681 F.3d 1082,
1091 (9th Cir. 2012), and the Court elects to strike Defendants’ unenumerated Rule 12(b) motion to dismiss in light of
the decision in Albino. A stricken document is a nullity which is not considered by the Court for any reason (First
Informational Order, ¶1 n. 1) and given that Plaintiff is a prisoner proceeding pro se, striking the motion and requiring
Defendants to re-notice it under Rule 12(b)(6) or Rule 56, accompanied by the requisite notice, serves to clarify the
record and place Plaintiff on “fair notice” regarding what is required of him in responding to the motion, Woods v.
Carey, 684 F.3d 934, 938-40 (9th Cir. 2012).

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