Hobley v. Baker et al

Filing 41

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/22/16 denying 29 Motion to Dismiss. Defendant Baker shall file his response to plaintiff's complaint within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON DURELL HOBLEY,

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No. 2:15-cv-1260 MCE CKD P

Plaintiff,

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v.

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E. BAKER, et al.,

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ORDER

Defendants.

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Plaintiff is proceeding pro se with an action for violation of civil rights under 42 U.S.C. §

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1983. On August 12, 2016, defendant Baker filed a motion to dismiss arguing that plaintiff failed

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to exhaust administrative remedies prior to filing suit. Defendant Baker brought the motion

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“under unenumerated Federal Rule of Civil Procedure 12(b)” as authorized by the Ninth Circuit

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in Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, the portion of Wyatt which

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permitted a defendant to argue failure to exhaust in an “unenumerated Rule 12(b) motion” was

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overruled by the Ninth Circuit in Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). After

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Albino, the failure to exhaust affirmative defense must be asserted in a motion for summary

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judgment or “in the rare event that a failure to exhaust is clear on the face of the complaint,” the

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defense can be asserted in a Rule 12(b)(6) motion to dismiss for failure to state a claim. Good

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cause appearing, defendant Baker’s motion to dismiss will be denied without prejudice to

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defendant Baker asserting failure to exhaust in a proper motion.
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendant Baker’s motion to dismiss (ECF No. 29) is denied without prejudice; and

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2. Defendant Baker shall file his response to plaintiff’s complaint within 21 days.

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Dated: November 22, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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hobl1260.exh

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