Morris v. Bradford et al

Filing 40

ORDER signed by Magistrate Judge Dale A. Drozd on 04/17/14 denying 35 Motion to Dismiss to the filing of a motion for summary judgment in accordance with Albino within 30 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LEON E. MORRIS,

12

Plaintiff,

13
14

No. 2:11-cv-1171 LKK DAD P

v.

ORDER

BRADFORD et al.,

15

Defendants.

16
On February 24, 2014, defendants filed a motion to dismiss on the grounds that plaintiff

17
18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

procedural device for raising the issue of exhaustion. Id.

28

/////
1

1

Accordingly, IT IS HEREBY ORDERED that defendants’ motion to dismiss for failure to

2

exhaust administrative remedies prior to filing suit (Doc. No. 35) is denied without prejudice to

3

the filing of a motion for summary judgment in accordance with Albino within thirty days.

4

Dated: April 17, 2014

5
6
7
8

DAD:9
morr1171.alb

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2