(PC) Felder v. Henson et al

Filing 34

ORDER Granting Withdrawal of Motion to Dismiss Based on Exhaustion and Denying Motion for Deadline to File Motion for Summary Judgment as Premature #33 , signed by Magistrate Judge Jennifer L. Thurston on 5/15/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY E. FELDER,

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Plaintiff,

(Doc. 33)

v.

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ORDER GRANTING WITHDRAWAL OF
MOTION TO DISMISS BASED ON
EXHAUSTION AND DENYING MOTION
FOR DEADLINE TO FILE MOTION FOR
SUMMARY JUDGMENT AS PREMATURE

Defendants.

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HENSON, et al

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Case No. 1:13-cv-01622-JLT (PC)

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Plaintiff Anthony E. Felder is a state prisoner proceeding pro se and informa pauperis in

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this civil action pursuant to 42 U.S.C. § 1983. On March 4, 2014, Defendants filed a Motion to

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Dismiss Plaintiff’s Complaint: 1) under non-enumerated Federal Rule of Civil Procedure 12(b),

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for failure to exhaust administrative remedies; and 2) under Rule 12(b)(6) for failure to state a

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claim upon which relief may be granted. (Doc. 21.) The motion is pending and fully briefed.

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On May 13, 2014, Defendants filed a notice (Doc. 33) requesting to withdraw the portion

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of their MTD based on the affirmative defense of Plaintiff's failure to exhaust his administrative

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remedies prior to filing suit in light of Albino v Baca, --- F.3d ---, No. 10-55702, 2014 WL

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1317141 (9th Cir. Apr. 3, 2014) (en banc). In that notice, Defendants requested an order issue

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authorizing them to file a motion for summary judgment on the exhaustion defense within forty-

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five days and that the remaining issues in their motion to dismiss be considered as briefed, or that

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forty-five days be provided for them to re-file. (Doc. 33.)
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Federal Rule of Civil Procedure 56(b) provides that, "[u]nless a different time is set by

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local rule or the court orders otherwise, a party may file a motion for summary judgment at any

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time until 30 days after the close of all discovery." The practice of this Court is to set a discovery

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cut-off date and a separate dispositive motion filing deadline in a discovery and scheduling order

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-- which also opens discovery. No discovery and scheduling order has issued in this case. Thus,

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there is no need for Defendants to be granted leave to file a motion for summary judgment as the

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dispositive motion filing deadline has not lapsed, nor even yet been set.

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Accordingly, it is HEREBY ORDERED that Defendants' motion, filed May 13, 2014
(Doc. 33), to withdraw the portion of their motion to dismiss based on the alleged lack of

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exhaustion of available administrative remedies is GRANTED. Defendants' request for an order

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authorizing their filing of motion for summary judgment on the exhaustion defense is DENIED

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as premature.

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IT IS SO ORDERED.
Dated:

May 15, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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