Cooper v. Heatley et al

Filing 48

ORDER signed by Magistrate Judge Dale A. Drozd on 5/21/14 DENYING WITHOUT PREJUDICE 37 Motion to Dismiss, to the filing of a motion for summary judgment in accordance with the decision in Albino within 30 days; and Plaintiff's opposition, whi ch may incorporate his previously filed opposition, shall be filed within 21 days after the date of service of the motion on plaintiff; defendants' reply, which may incorporate by reference his previously filed reply on his motion to dismiss, shall be filed 7 days thereafter. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GOLDYN COOPER,

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No. 2:12-cv-00602 KJM DAD P

Plaintiff,
v.

ORDER

SCOTT HEATLEY, et al.,
Defendants.

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On March 5, 2014, defendants filed a motion to dismiss on the grounds that this court

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lacks subject matter jurisdiction over this action because plaintiff failed to exhaust his

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administrative remedies prior to filing suit as required. On April 3, 2014, the United States Court

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of Appeals for the Ninth Circuit overruled its prior decision in Wyatt v. Terhune, 315 F.3d 1108,

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1119 (9th Cir. 2003), with respect to the proper procedural device for seeking pretrial resolution

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of an affirmative defense on the basis of failing to comply with the administrative exhaustion

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requirement. See Albino v. Baca, ___ F.3d ___, 2014 WL 1317141 at *1 (9th Cir. 2014) (en

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banc). Under the decision in Albino, a defendant may raise the issue of proper exhaustion in

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

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exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Id. at *4

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

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procedural device for raising the issue of exhaustion. Id.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ March 5, 2014 motion to dismiss for failure to exhaust administrative

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remedies prior to filing suit (ECF No. 37) is denied without prejudice to the filing of a motion for

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summary judgment in accordance with the decision in Albino within thirty days; and

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2. Plaintiff’s opposition, which may incorporate his previously filed opposition, shall be

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filed within twenty-one days after the date of service of the motion on plaintiff; defendants’ reply,

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which may incorporate by reference his previously filed reply on his motion to dismiss, shall be

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filed seven days thereafter.

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Dated: May 21, 2014

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DAD:4
coop602.mtd

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