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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ABEL P. REYES, 12 13 Case No. 1:16-cv-00586-DAD-JLT (PC) Plaintiff, ORDER ON PLAINTIFF’S MOTION CHALLENGING EXHAUSTION OF REMEDIES v. (Doc. 21) 14 FLORES, et al., 15 Defendants. 16 17 Plaintiff filed a motion seeking to prove he exhausted administrative remedies, in 18 compliance with 42 U.S.C. § 1997e(a), prior to initiating this action. (Doc. 21.) However, the 19 failure to exhaust is an affirmative defense which Defendant bears the burden of raising and 20 proving on summary judgment. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747 21 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014). Defendant has not 22 moved for summary judgment on exhaustion issues and the deadline to do so lapsed on August 23 22, 2017. (Doc. 20.) Plaintiff need not prove his exhaustion efforts until called into question by 24 Defendants. 25 26 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 27 28 1 1 DISREGARDED.1 2 3 IT IS SO ORDERED. Dated: 4 September 2, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court does not determine the sufficiency of Plaintiff’s exhaustion efforts or the availability of administrative remedies at this time. 2

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