Hines v. Noriega et al

Filing 24

ORDER signed by Magistrate Judge Allison Claire on 4/10/2014 VACATING defendant's 18 motion to dismiss; defendant may, within 14 days, bring a motion for summary judgment pursuant to Fed.R.Civ.P. 56 on the issue of administrative exhaustion; and defendant may, within 14 days, re-file that portion of the vacated motion brought pursuant to Rule 12(b)(6) in a separate motion or in a combination with any motion for summary judgment regarding the exhaustion of administrative remedies. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY HINES,

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No. 2:13-cv-0392 JAM AC P
Plaintiff,

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v.

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NORIEGA, 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.

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Pending before the court is defendant Noriega’s fully briefed motion to dismiss the 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), and for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). ECF Nos. 18, 22,

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23.

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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 in most cases be presented in a motion for summary judgment rather than a

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

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1317141 (9th Cir. Apr. 3, 2014) (en banc). Because defendant Noriega has moved for dismissal

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of the amended complaint as administratively unexhausted pursuant to Rule 12(b), and has not

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complied with the requirements of Rule 56, the court will vacate the motion and direct the

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defendant to file within fourteen (14) days a motion that complies with Albino. The portion of

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defendant’s motion that asserts failure to state a claim, and does not involve administrative

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exhaustion, may be refiled as a separate motion or in combination with a motion for summary

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judgment pursuant to Rule 56 regarding plaintiff’s alleged failure to exhaust.

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Accordingly, IT IS ORDERED that:

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1. Defendant’s motion to dismiss (ECF No. 18) is vacated;

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2. Defendant 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, defendant 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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3. Defendant may, within fourteen days, re-file that portion of the vacated motion brought

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

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judgment regarding the exhaustion of administrative remedies.

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DATED: April 10, 2014

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