Colbert v. Leininger, et al.

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 04/16/14 denying 23 Motion to Dismiss. Defendant may file and serve, within 30 days after the filing date of this order, a motion for summary judgment that includes notice to plaintiff of the evidentiary requirements for opposing the motion. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE K. COLBERT,

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Plaintiff,

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No. 2:13-cv-0382 KJM KJN P

v.

ORDER

D. LEININGER, et al.,

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Defendants.

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The Ninth Circuit Court of Appeals, in Albino v. Baca, __ F.3d __, 2014 WL 1344468

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(9th Cir. Apr. 7, 2014) (en banc), recently held that a motion for summary judgment pursuant to

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Rule 56, Federal Rules of Civil Procedure, not an “unenumerated 12(b) motion” to dismiss, is the

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appropriate vehicle for challenging a prisoner’s claims based on an alleged failure to exhaust

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administrative remedies.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Leininger’s motion to dismiss for failure to exhaust administrative remedies,

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currently pending in this action (ECF No. 23), is denied without prejudice.
2. Defendant may file and serve, within thirty (30) days after the filing date of this order,

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a motion for summary judgment that includes notice to plaintiff of the evidentiary requirements

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for opposing the motion. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland,

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154 F.3d 952, 957 (9th Cir. 1998). Such motion shall be briefed in accordance with Local Rule

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230(l).

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SO ORDERED.
Dated: April 16, 2014

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/colb0382.Albino

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