Watts v. Flory et al

Filing 54

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/11/2014 DISMISSING defendants' 45 motion to dismiss without prejudice to renewal as a motion for summary judgment pursuant to Albino; and defendants shall file any forthcoming summary judgment motion on the issue of non-exhaustion within 30 days, or show good cause why they are unable to do so within that time frame. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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Plaintiff,

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No. 2:10-cv-2688 TLN CKD P

v.

ORDER

TIM V. VIRGA, et al.,

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Defendants.

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Pursuant to Albino v. Baca, ___ F.3d ___, 2014 WL 1317141 (9th Cir. April 3, 2014), the

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court will dismiss defendants’ pending motion to dismiss pursuant to Rule 12(b) for failure to

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exhaust administrative remedies, without prejudice to refiling as a motion for summary judgment

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on the issue of failure to exhaust administrative remedies.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Defendants’ motion to dismiss (ECF No. 45) is dismissed without prejudice to renewal

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as a motion for summary judgment pursuant to Albino; and

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2. Defendants shall file any forthcoming summary judgment motion on the issue of non-

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exhaustion within thirty days from the date of this order, or show good cause why they are unable

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to do so within that timeframe.

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Dated: April 11, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / watt2688.albino

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