Turner v. Colon

Filing 116

ORDER signed by Magistrate Judge Allison Claire on 7/1/2014 ORDERING the defendants to file their response to the 20 second amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEO B. TURNER, Jr.,

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No. 2:11-cv-2343 KJM AC P

Plaintiff,

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v.

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R. COLON, et al.,

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ORDER

Defendants.

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On February 28, 2014, this court granted defendants’ motion to dismiss the second

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amended complaint under Federal Rule of Civil Procedure 12(b) for failure to exhaust

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administrative remedies, and entered judgment, after which plaintiff appealed. On April 3, 2014,

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the Ninth Circuit overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect

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to the appropriate procedural device for raising the issue of administrative exhaustion. See

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Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). By order filed on June 9, 2014, the

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Ninth Circuit vacated the judgment and remanded the instant case to this court “in light of the

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intervening authority of Albino v. Baca,” in an order stating that Albino had “held that the

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appropriate method to determine PLRA exhaustion is a motion for summary judgment, not an

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unenumerated Rule 12(b) motion.” ECF No. 113.
Therefore, this matter once again proceeds on plaintiff’s second amended complaint.

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Accordingly, IT IS ORDERED that defendants file their response to the second amended

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complaint within thirty days.

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DATED: July 1, 2014

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