Gaston v. Hedgepeth et al

Filing 19

ORDER Regarding 18 Motion, signed by Chief Judge Ralph R. Beistline on 04/22/14. (Gonzalez, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ANTHONY GASTON,
Case No. 1:13-cv-01395-RRB
Plaintiff,
ORDER REGARDING
MOTION AT DOCKET 18

vs.
ANTHONY HEDGEPETH, Warden, et
al.,
Defendant.

At Docket 18 Defendant E. Morales has moved for Judgment on the Pleadings,1
alleging that the face of the complaint shows that Plaintiff has failed to exhaust his
remedies. The motion is defective on its face. First, a prisoner is not required to
affirmatively plead exhaustion of administrative remedies.2 Second, the appropriate
procedure for obtaining dismissal for the failure to exhaust administrative remedies is a
motion for summary judgment under Federal Rule of Civil Procedure 59, not a motion for
judgment on the pleadings under Rule 12.3 As noted in the Screening Order, this
complaint does not present the rare case where failure to exhaust is clear from the face

1

Fed. R. Civ. P. 12(c).

2

Jones v. Bock, 549 U.S. 199, 212–17 (2007).

3

Albino v. Baca, __ F3d ___, ___ , 2014 WL 1317141 at *4–5 (9th Cir. Apr. 3, 2014)
(en banc) (overruling in part Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003)).
ORDER REGARDING MOTION AT DOCKET 18.
Gaston v, Hedgepeth, et al., 1:13-cv-02395-RRB – 1

of the complaint.4 Nothing in the motion pending before this Court provides any basis upon
which this Court should reconsider its prior determination.
Accordingly, Defendant’s Motion for Judgment on the Pleadings at Docket 18 is
DENIED, without prejudice to refiling as a motion for summary judgment.
IT IS SO ORDERED this 22nd day of April, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

4

Docket 10, p. 12 .

ORDER REGARDING MOTION AT DOCKET 18.
Gaston v, Hedgepeth, et al., 1:13-cv-02395-RRB – 2