Jamison v. Gummi et al
ORDER and AMENDED DISCOVERY AND SCHEDULING ORDER signed by Magistrate Judge Allison Claire on 04/22/14 vacating 35 defendant's motion to dismiss. Defendant may, within 14 days, bring a motion for summary judgment pursuant to FRCP 56 on the i ssue of administrative exhaustion. In doing so, defendant must provide plaintiff with the notice required under Rand v. Rowland. The discovery deadline is extended to 12/14/14. All pretrial motions, except motions to compel discovery, shall be filed on or before 04/01/15. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ORDER AND AMENDED DISCOVERY
AND SCHEDULING ORDER
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983.
Pending before the court is defendant’s motion to dismiss the complaint for failure to exhaust
administrative remedies pursuant to non-enumerated Fed. R. Civ. P. 12(b). ECF No. 35. Plaintiff
has opposed the motion. ECF Nos. 40-41.
On April 3, 2014, the Ninth Circuit overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Cir. 2003), and held that the defense of failure to exhaust administrative remedies under 42
U.S.C. § 1997e(a) should in most cases be presented in a motion for summary judgment rather
than a motion to dismiss under unenumerated Rule 12(b). Albino v. Baca, No. 10-55702, 2014
WL 1317141 (9th Cir. Apr. 3, 2014) (en banc). Because defendant has moved for dismissal of
the complaint as administratively unexhausted pursuant to Rule 12(b), and has not complied with
the requirements of Rule 56, the court will vacate the motion and direct the defendant to file
within fourteen (14) days a motion that complies with Albino.
Also pending before the court is defendant’s motion to modify the discovery and
scheduling order of February 14, 2014. ECF No. 39. In the motion, defendant requests a six
month extension of the discovery and dispositive motions deadline governing this case in order
“to complete discovery and obtain the necessary information to prepare her defense.” Id. at 2.
Based on defendant’s good faith efforts to meet the deadlines in the discovery schedule entered in
this case to date and for good cause shown, the court will grant the motion. See Fed. R. Civ. P.
Accordingly, IT IS ORDERED that:
1. Defendant’s motion to dismiss (ECF No. 35) is vacated;
2. Defendant may, within fourteen days, bring a motion for summary judgment pursuant
to Fed. R. Civ. P. 56 on the issue of administrative exhaustion. In doing so, defendant must
provide plaintiff with the notice required under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998) (en banc);
3. The discovery deadline is extended to December 14, 2014. Any motions necessary to
compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ.
P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date (October 15, 2014);
4. All pretrial motions, except motions to compel discovery, shall be filed on or before
April 1, 2015; and,
5. All other provisions of this Court’s February 14, 2014 Discovery and Scheduling Order
remain in effect.
DATED: April 22, 2014
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