Jackson v. Pletcher et al

Filing 196

ORDER signed by Magistrate Judge Kendall J. Newman on 05/01/13 ordering defendant Pletcher is dismissed without prejudice. Defendant Pletcher's motion to stay 162 and the 03/14/13 findings and recommendations 189 are vacated. Within 21 day s of the date of this order, defendants may file a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative remedies; if defendants do not intend to pursue this motion, they shall notify the court within that time. Within 21 days of the date of this order, both parties shall file status reports addressing whether additional time to conduct discovery is required. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND D. JACKSON,
Plaintiff,

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vs.
STEVEN PLETCHER, et al.,
Defendants.

ORDER
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No. 2: 11-cv-1157 JAM KJN P

Plaintiff, a state prisoner proceeding through counsel, has requested that defendant

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Pletcher be dismissed without prejudice. Defendant Pletcher and the remaining defendants do

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not object to the dismissal without prejudice. Pursuant to Fed. R. Civ. P. 41(a), plaintiff’s

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request shall be honored.

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On March 14, 2013, the undersigned recommended that defendant Pletcher’s

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motion to stay be granted. Because defendant Pletcher is dismissed, his motion to stay and the

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March 14, 2013 findings and recommendations are vacated.

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On December 6, 2012, remaining defendants Osman, Bick and Aguilera filed a

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summary judgment motion on grounds that plaintiff failed to exhaust administrative remedies.

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On December 20, 2012, the court denied this motion without prejudice pending the court’s ruling

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on defendant Pletcher’s motion to stay.
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On January 3, 2012, the court appointed counsel to represent plaintiff. On May

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21, 2012, plaintiff’s filed an amended complaint. On June 19, 2012, defendant Osman filed an

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answer to the amended complaint. On July 24, 2012, defendants Aguilera and Bick filed an

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answer to the amended complaint.
Following the filing of the amended complaint, the court did not set discovery or

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dispositive motion cut-off deadlines. For this reason, both parties shall submit status reports

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informing the court whether further discovery is required and, if so, the amount of time they

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anticipate to complete discovery.
If defendants still intend to argue that plaintiff failed to exhaust administrative

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remedies, they shall file an unenumerated Rule 12(b) motion within twenty-one days of the date

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of the date of this order. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (the

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proper method for asserting failure to exhaust administrative remedies is an unenumerated Rule

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12(b) motion). Plaintiff does not require discovery in order to respond to this motion. The court

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will issue a further scheduling order after reviewing these documents.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Pletcher is dismissed without prejudice;

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2. Defendant Pletcher’s motion to stay (dkt. no. 162) and the March 14, 2013

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findings and recommendations (dkt. no. 189) are vacated;

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3. Within twenty-one days of the date of this order, defendants may file a motion

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to dismiss pursuant to Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative

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remedies; if defendants do not intend to pursue this motion, they shall notify the court within that

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time; and

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4. Within twenty-one days of the date of this order, both parties shall file status

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reports addressing whether additional time to conduct discovery is required.

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DATED: May 1, 2013
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jack1157.stip

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