Simpson v. Grounds et al

Filing 41

ORDER DENYING MOTION TO DISMISS by Hon. William H. Orrick denying 28 Motion to Dismiss. Defendants' motion to dismiss (Docket No. 28) is DENIED without prejudice. Defendants are directed to renew their arguments in support of dismissal by way of a motion for summary judgment. (jmdS, COURT STAFF) (Filed on 4/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHAUNCEY REENE SIMPSON,

Case No. 12-cv-01024-WHO (PR)

Plaintiff,
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v.

ORDER DENYING MOTION TO
DISMISS

United States District Court
Northern District of California

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K. SATHER, et al.,
Defendants.

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Defendants' motion to dismiss this federal civil rights action on grounds that

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plaintiff Simpson failed to exhaust his administrative remedies (Docket No. 28) is

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DENIED without prejudice. Defendants are directed to renew their arguments in support

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of dismissal by way of a motion for summary judgment in light of the Ninth Circuit's

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recent ruling in Albino v. Baca, No. 10-55702, slip op. at 4 (9th Cir. Apr. 3, 2014) (en

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banc). The summary judgment motion need raise only the issue of nonexhaustion, or other

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procedural concerns. If the motion is denied, defendants can thereafter file a motion for

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summary judgment addressing the merits of Simpson's claims. The Clerk shall terminate

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Docket No. 28.

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IT IS SO ORDERED.
Dated: April 9, 2014
_________________________
WILLIAM H. ORRICK
United States District Judge