Parthemore v. Kissel, et al

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 4/15/2014 VACATING defendants' 33 motion to dismiss; defendants may, within 14 days, bring a motion for summary judgment pursuant to Fed. R. Civ. P. 56 on the issue of administrative exhau stion, in doing so, defendants must provide plaintiff with a 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) in a separate motion or in 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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IRA DON PARTHEMORE,

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No. 2:13-cv-0819 KJM AC P

Plaintiff,

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v.

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B. KISSEL, 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. On

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March 10, 2014 defendants filed a motion to dismiss the first amended complaint 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 No. 33.

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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 defendants have moved for dismissal of the

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amended complaint as administratively unexhausted pursuant to Rule 12(b), and have 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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defendants to file within fourteen (14) days a motion that complies with Albino. The portion of

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defendants’ 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. Defendants’ motion to dismiss (ECF No. 33) is vacated;

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

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brought pursuant to Rule 12(b)(6) in 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 15, 2014

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