Hall v. San Joaquin County Jail, et al

Filing 62

ORDER signed by Magistrate Judge Allison Claire on 04/22/14 vacating 53 Motion to Dismiss. Defendants may within 14 days, bring a motion for summary judgment pursuant to FRCP 56 on the issue of administrative exhaustion. In doing so, defendants must provide plaintiff with the notice required under Rand v. Rowland. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRELL D. HALL,

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No. 2:13-cv-00324-AC-P

Plaintiff,
v.

ORDER

SAN JOAQUIN COUNTY JAIL, et al.,
Defendants.

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

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Pending before the court is defendants’ fully briefed motion to dismiss the third amended

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complaint for failure to exhaust administrative remedies pursuant to non-enumerated Fed. R. Civ.

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P. 12(b). ECF Nos. 53, 60, 61.

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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

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U.S.C. § 1997e(a) should in most cases be presented in a motion for summary judgment rather

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than a motion to dismiss under unenumerated Rule 12(b). Albino v. Baca, No. 10-55702, 2014

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WL 1317141 (9th Cir. Apr. 3, 2014) (en banc). Because defendants have moved for dismissal of

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the third amended complaint as administratively unexhausted pursuant to Rule 12(b), and have

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not complied with the requirements of Rule 56, the court will vacate the motion and direct the

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defendants to file within fourteen (14) days a motion that complies with Albino.
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Accordingly, IT IS ORDERED that:

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1. Defendants’ motion to dismiss (ECF No. 53) is vacated; and,

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2. 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 the notice required under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.

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1998) (en banc).

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DATED: April 22, 2014

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