Byrd v. Lynn et al

Filing 85

ORDER signed by Magistrate Judge Dale A. Drozd on 4/21/14 ORDERING that 78 Motion to Dismiss for failure to exhaust administrative remedies prior to filing suit 78 is DENIED without prejudice to the filing of a motion for summary judgment in accordance with Albino within thirty days; and Defendants request for clarification from the court on the effect of the decision in Albino on the pending unenumerated Rule 12(b) motion to dismiss 83 is GRANTED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOSEA BYRD,

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Plaintiff,

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No. 2:10-cv-0839 KJM DAD P

v.

ORDER

A. FLYNN,

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Defendant.

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On March 10, 2014, defendant filed a motion to dismiss on the grounds that plaintiff

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failed to exhaust administrative remedies prior to filing suit as required. On April 3, 2014, the

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United States Court of Appeals for the Ninth Circuit overruled the decision in Wyatt v. Terhune,

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315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper procedural device for seeking

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pretrial resolution of an affirmative defense on the basis of failing to comply with the

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administrative exhaustion requirement. See Albino v. Baca, ___ F.3d ___, 2014 WL 1317141 at

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*1 (9th Cir. 2014) (en banc). Under the decision in Albino, a defendant may raise the issue of

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proper exhaustion in either (1) a motion to dismiss brought pursuant to Rule 12(b)(6), in the rare

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event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary

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judgment. Id. at *4 (quotation marks omitted). An unenumerated Rule 12(b) motion is no longer

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the proper procedural device for raising the issue of exhaustion. Id.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to dismiss for failure to exhaust administrative remedies prior to

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filing suit (Doc. No. 78) is denied without prejudice to the filing of a motion for summary

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judgment in accordance with Albino within thirty days; and

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2. Defendant’s request for clarification from the court on the effect of the decision in

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Albino on the pending unenumerated Rule 12(b) motion to dismiss (Doc. No. 83) is granted.

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Dated: April 21, 2014

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DAD:9
byrd0839.alb

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