Guerra v. Kern County Sheriff's Department et al

Filing 36

ORDER Striking 34 Unenumerated Rule 12(B) Motion and Requiring Defendants to File Summary Judgment Motion within Thirty Days, signed by Magistrate Judge Barbara A. McAuliffe on 4/23/15. (Verduzco, M)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOAQUIN GUERRA, Plaintiff, 11 12 13 v. KERN COUNTY SHERIFF’S DEPARTMENT, et al., 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER STRIKING UNENUMERATED RULE 12(B) MOTION AND REQUIRING DEFENDANTS TO FILE SUMMARY JUDGMENT MOTION WITHIN THIRTY DAYS (Doc. 34) 14 15 Case No. 1:13-cv-01077-AWI-BAM (PC) Defendants. _____________________________________/ Plaintiff Joaquin Guerra (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action while a pre-trial detainee at the Kern County Jail. This action is proceeding on Plaintiff’s first amended complaint against Defendants Sweeney, Feely and Jane Doe #1 for deliberate indifference to serious medical need in violation of the Fourteenth Amendment. Defendants Sweeney and Feely answered the complaint on January 20, 2015. Thereafter, on January 22, 2015, the Court issued a Discovery and Scheduling Order. Pursuant to that order, the deadline to file any motion for summary judgment under Federal Rule of Civil Procedure 56 for failure to exhaust administrative remedies was April 22, 2015. On April 22, 2015, Defendants Sweeney and Feely filed an unenumerated Rule 12(b) motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Defendants’ motion is procedurally 1 improper. 2 On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a 3 decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the 4 proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca, 747 5 F.3d 1162, 1168-69 (9th Cir. 2014). Following the decision in Albino, Defendants may raise the 6 issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the 7 failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Id. 8 An unenumerated Rule 12(b) motion is no longer the proper procedural device for raising the issue 9 of exhaustion. Id. 10 Accordingly, in light of the decision in Albino, it is HEREBY ORDERED that: 11 1. Defendants’ unenumerated Rule 12(b) motion is stricken from the record;1 and 12 2. Defendants have thirty (30) days from the date of service of this order within 13 which to file a motion for summary judgment for failure to exhaust administrative remedies 14 pursuant to Federal Rule of Civil Procedure 56. 15 16 IT IS SO ORDERED. 17 Dated: /s/ Barbara April 23, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 1 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, ¶II.A., and given that Plaintiff is a prisoner proceeding pro se, striking the motion and requiring Defendants to re-notice it under 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). 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?