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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 ROBERTO HERRERA, 14 Plaintiff, 15 v. 16 ROUCH, 17 Defendant. 18 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) 19 20 Plaintiff Roberto Herrera, a state prisoner proceeding pro se and in forma 21 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 27, 2013. 22 (ECF No. 1.) This case proceeds on Plaintiff’s Second Amended Complaint which 23 alleges Defendant Rouch denied Plaintiff medical care in violation of the Eighth 24 Amendment. (ECF No. 18.) 25 On December 26, 2013 Defendant Rouch moved to dismiss the case, in part1, 26 under the unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure 27 1 28 Defendant also asserted that the action should be dismissed for failure to state a claim and because of qualified immunity. (ECF No. 32.) 1 1 exhaust administrative remedies. 2 Defendant replied. (ECF Nos. 36 and 37.) (ECF No. 32.) Plaintiff filed an opposition and 3 On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a 4 decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect 5 to the proper procedural device for raising the issue of administrative exhaustion. Albino 6 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 7 Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant 8 to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the 9 complaint, or (2) a motion for summary judgment. Following the decision in Albino, Albino, 747 F.3d at 1166. An 10 unenumerated Rule 12(b) motion is no longer the proper procedural device for raising 11 the issue of exhaustion. Id. at 1168. 12 On June 18, 2014, Defendant filed a notice acknowledging Albino and requesting 13 that the Court convert the unenumerated Rule 12(b) portion of the Motion to Dismiss, 14 regarding exhaustion of administrative remedies, into a motion for summary judgment. 15 Alternatively, Defendant asked that he be permitted to withdraw the 12(b) portion and be 16 granted leave to file a motion for summary judgment based on exhaustion of 17 administrative remedies. In either case Defendant asks that the sections of the Motion 18 to Dismiss not addressing exhaustion remain. (ECF No. 65.) 19 The unenumerated Rule 12(b) portion of the Motion to Dismiss is procedurally 20 deficient in light of the decision in Albino. Because the Rule 12(b) motion does not 21 contain all that a motion for summary judgment would require and to ensure proper 22 notice to Plaintiff of such a motion, the motion to convert shall be denied. 23 Accordingly, it is HEREBY ORDERED that: 24 1. The request to convert the unenumerated Rule 12(b) portion of the Motion 25 to Dismiss (ECF No. 32) is DENIED and that section of the motion shall be 26 DISREGARDED; and 27 28 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 2 1 this Order, file a summary a summary judgment motion addressing administrative 2 exhaustion. 3 4 5 IT IS SO ORDERED. Dated: August 1, 2014 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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