Reyes v. Flores et al

Filing 24

ORDER on Plaintiff's 21 Motion Challenging Exhaustion of Remedies, signed by Magistrate Judge Jennifer L. Thurston on 9/2/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ABEL P. REYES,

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Case No. 1:16-cv-00586-DAD-JLT (PC)
Plaintiff,

ORDER ON PLAINTIFF’S MOTION
CHALLENGING EXHAUSTION OF REMEDIES

v.
(Doc. 21)

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FLORES, et al.,

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Defendants.

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Plaintiff filed a motion seeking to prove he exhausted administrative remedies, in

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compliance with 42 U.S.C. § 1997e(a), prior to initiating this action. (Doc. 21.) However, the

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failure to exhaust is an affirmative defense which Defendant bears the burden of raising and

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proving on summary judgment. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014). Defendant has not

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moved for summary judgment on exhaustion issues and the deadline to do so lapsed on August

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22, 2017. (Doc. 20.) Plaintiff need not prove his exhaustion efforts until called into question by

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Defendants.

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Accordingly, the Court ORDERS that Plaintiff’s motion to prove exhaustion of
administrative remedies in compliance with 42 U.S.C. § 1997e(a), (Doc. 21), is

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DISREGARDED.1

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IT IS SO ORDERED.
Dated:

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September 2, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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The Court does not determine the sufficiency of Plaintiff’s exhaustion efforts or the availability of administrative
remedies at this time.

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