Springfield v. Unknown

Filing 50

ORDER signed by Magistrate Judge Allison Claire on 04/09/14 vacating 35 Motion to Dismiss and denying 49 Motion to strike plaintiff's surreply. Defendants may within 14 days bring a motion for summary judgment pursuant to FRCP 56 on the i ssue of administrative exhaustion. In doing so, defendants must provide plaintiff with notice required under Rand v. Rowland. Defendants may within 14 days, re-file that portion of the vacated motion brought pursuant to Rule 12(b)(6), a separate motion or in combination with any motion for summary judgment regarding the exhaustion of administrative remedies. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CIRON B. SPRINGFIELD,

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Plaintiff,

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No. 2:12-cv-2552 KJM AC P

v.
VIMAL J. SINGH, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. By

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Order filed on January 28, 2014 (ECF No. 47), this case was related to Springfield v. Allen, No.

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2:13-cv-0809 KJM AC P. Pending before the court are: (1) defendants’ motion to consolidate the

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two cases (ECF No. 31)1; (2) a fully briefed motion to dismiss the instant case for failure to

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exhaust administrative remedies, pursuant to non-enumerated Fed. R. Civ. P. 12(b), and for

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failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6) (ECF Nos. 35, 45, 46); and (3)

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defendants’ motion to strike plaintiff’s surreply on the motion to dismiss (ECF No. 49).

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On April 3, 2014, the Ninth Circuit overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

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Cir. 2003) and held that the defense of failure to exhaust administrative remedies under 42 U.S.C.

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§ 1997e(a) should be presented in a motion for summary judgment rather than a motion to

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See also Case No. 2:13-cv-0809 KJM AC P, ECF No. 22 (motion to consolidate).
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dismiss under unenumerated Rule 12(b). Albino v. Baca, No. 10-55702, 2014 WL 1317141 (9th

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Cir. Apr. 3, 2014) (en banc). Because defendants have moved for dismissal of the complaint as

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administratively unexhausted pursuant to Rule 12(b), and have not complied with the

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requirements of Rule 56, the court will vacate the motion and direct defendants to file within 14

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days a motion (or motions) that comply with Albino. The portion of defendant’s motion that

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asserts failure to state a claim, and does not involve administrative exhaustion, may be refiled as a

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separate motion or in combination with a motion for summary judgment pursuant to Rule 56

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regarding plaintiff’s alleged failure to exhaust.

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Vacating the currently pending motion will have the effect of mooting defendants’ motion
to strike plaintiff’s surreply.

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The motion to consolidate remains pending and will be addressed in a later ruling.

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Accordingly, IT IS ORDERED that:

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1. Defendant’s motion to dismiss (ECF No. 35) is vacated;

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2. The motion to strike plaintiff’s surreply (ECF No. 49) is denied as moot;

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3. Defendants may, within fourteen days, bring a motion for summary judgment pursuant

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to Fed. R. Civ. P. 56 on the issue of administrative exhaustion. In doing so, defendants must

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provide plaintiff with notice required under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)

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(en banc);

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4. Defendants may, within fourteen days, re-file that portion of the vacated motion

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brought pursuant to Rule 12(b)(6) a separate motion or in combination with any motion for

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summary judgment regarding the exhaustion of administrative remedies.

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DATED: April 9, 2014

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