Warner v. Cate et al

Filing 37

ORDER (1) Disregarding Unenumerated Rule 12(b) 20 Motion, (2) Disregarding 29 Motion to Strike Surreply to Unenumerated Rule 12(b) Motion, (3) Requiring Defendants to File Responsive Pleading or Motion within Forty-Five Days, and (4) Denying Request for Stay of Discovery and Scheduling signed by Magistrate Judge Michael J. Seng on 05/30/2014. Response due by 7/21/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EARL WARNER,

Case No. 1:12-cv-01146-MJS (PC)

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Plaintiff,

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ORDER (1) DISREGARDING
UNENUMERATED RULE 12(b) MOTION ,
(2) DISREGARDING MOTION TO STRIKE
SURREPLY TO UNENUMERATED RULE
12(b) MOTION, (3) REQUIRING
DEFENDANTS TO FILE RESPONSIVE
PLEADING OR MOTION WITHIN FORTYFIVE DAYS, and (4) DENYING REQUEST
FOR STAY OF DISCOVERY AND
SCHEDULING

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(ECF Nos. 20, 29, 33)

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v.
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MATTHEW L. CATE, et al.,
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Defendants.
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On July 12, 2012, Plaintiff Earl Warner, a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This

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matter proceeds on a failure to protect claim against Defendants Walker, McGaha, Prokop,

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Spalding, and Fellows.
On September 16, 2013, Defendants filed a motion to dismiss the action under the

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unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure to exhaust

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administrative remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed

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opposition to which Defendants replied. Plaintiff filed a surreply which Defendants move to

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strike.

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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

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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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On May 13, 2014, Defendants filed a notice acknowledging Albino and withdrawing

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their 12(b) motion and requesting forty-five days to file a motion for summary judgment for

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failure to exhaust and requesting the Court refrain from issuing a discovery and scheduling

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order until its ruling on summary judgment. Plaintiff filed opposition to which Defendants

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replied.

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Accordingly, it is HEREBY ORDERED that:

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1.

shall be DISREGARDED,

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2.

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Defendants shall, within forty-five (45) days from the date of service of this
Order file a responsive pleading or motion, and

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The motion to strike Plaintiff’s surreply to the 12(b) motion (ECF No. 29) shall
be DISREGARDED,

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The unenumerated Rule 12(b) motion filed September 16, 2013 (ECF No. 20)

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Defendants unsupported request that the Court refrain from issuing a

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discovery and scheduling order pending ruling on summary judgment (ECF

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No. 33) is DENIED.

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IT IS SO ORDERED.
Dated:

May 30, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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