Herrera v. Rouch

Filing 78

ORDER GRANTING Defendant's 65 Motion for Leave to File a Motion for Summary Judgment; ORDER DENYING Defendant's Request to Convert the Unenumberated 12(B) Portion of the Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 8/1/14. (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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v.

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ROUCH,

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Defendant.

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CASE No. 1:13-cv-00289-LJO-MJS
ORDER
DENYING
DEFENDANT’S
REQUEST
TO
CONVERT
THE
UNENUMERATED 12(B) PORTION OF
THE MOTION TO DISMISS INTO A
MOTION FOR SUMMARY JUDGMENT
AND
GRANTING
DEFENDANT’S
REQUEST FOR LEAVE TO FILE A
MOTION FOR SUMMARY JUDGMENT
(ECF No. 65)

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Plaintiff Roberto Herrera, a state prisoner proceeding pro se and in forma
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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 27, 2013.
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(ECF No. 1.)

This case proceeds on Plaintiff’s Second Amended Complaint which

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alleges Defendant Rouch denied Plaintiff medical care in violation of the Eighth
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Amendment. (ECF No. 18.)
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On December 26, 2013 Defendant Rouch moved to dismiss the case, in part1,

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under the unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure
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Defendant also asserted that the action should be dismissed for failure to state a claim and because of
qualified immunity. (ECF No. 32.)

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exhaust administrative remedies.

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Defendant replied. (ECF Nos. 36 and 37.)

(ECF No. 32.)

Plaintiff filed an opposition and

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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

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to the proper procedural device for raising the issue of administrative exhaustion. Albino

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v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).

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Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant

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

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complaint, or (2) a motion for summary judgment.

Following the decision in Albino,

Albino, 747 F.3d at 1166.

An

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unenumerated Rule 12(b) motion is no longer the proper procedural device for raising

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the issue of exhaustion. Id. at 1168.

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On June 18, 2014, Defendant filed a notice acknowledging Albino and requesting

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that the Court convert the unenumerated Rule 12(b) portion of the Motion to Dismiss,

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regarding exhaustion of administrative remedies, into a motion for summary judgment.

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Alternatively, Defendant asked that he be permitted to withdraw the 12(b) portion and be

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granted leave to file a motion for summary judgment based on exhaustion of

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administrative remedies. In either case Defendant asks that the sections of the Motion

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to Dismiss not addressing exhaustion remain. (ECF No. 65.)

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The unenumerated Rule 12(b) portion of the Motion to Dismiss is procedurally

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deficient in light of the decision in Albino. Because the Rule 12(b) motion does not

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contain all that a motion for summary judgment would require and to ensure proper

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notice to Plaintiff of such a motion, the motion to convert shall be denied.

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Accordingly, it is HEREBY ORDERED that:

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1.

The request to convert the unenumerated Rule 12(b) portion of the Motion

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to Dismiss (ECF No. 32) is DENIED and that section of the motion shall be

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DISREGARDED; and

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2.

Defendant’s request for leave to file a motion for summary judgment (ECF

No. 65) is GRANTED. Defendant shall, within thirty (30) days from the date of service of
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this Order, file a summary a summary judgment motion addressing administrative

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exhaustion.

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IT IS SO ORDERED.
Dated:

August 1, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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