Martin v. Hedgpeth et al

Filing 80

ORDER by Judge Charles R. Breyer granting 74 Motion to convert unemerated 12(b) motion to dismiss to a motion for summary jdugment under Rule 56; denying as moot 78 Motion for Extension of Time to File. (Attachments: # 1 Certificate/Proof of Service) (beS, COURT STAFF) (Filed on 5/8/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEORGE MARTIN, H-90626,
Plaintiff(s),

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v.
RANDY GROUNDS, Warden, et al.,
Defendant(s).

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No. C 12-3193 CRB (PR)
ORDER
(Docket #74 & 78)

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On February 14, 2014, defendants filed a dispositive motion consisting of

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an unenumerated Rule 12(b) motion to dismiss for failure to exhaust available

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administrative remedies and a Rule 12(b)(6) motion to dismiss for failure to state

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a claim upon which relief could be granted. The Ninth Circuit subsequently ruled

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in Albino v. Baca, No. 10-55702, slip op. at 4-5, 12 (9th Cir. Apr. 3, 2014) (en

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banc), that failure to exhaust available administrative remedies should be brought

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in a motion for summary judgment in most cases. Defendants accordingly move

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to convert their unenumerated Rule 12(b) motion to dismiss to a motion for

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summary judgment under Rule 56. (They also have provided plaintiff with the

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requisite concurrent Rand warning explaining what plaintiff has to do to ward off

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summary judgment.)

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Good cause shown, defendants’ motion (docket #74) to convert their

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unemerated 12(b) motion to dismiss to a motion for summary judgment under

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Rule 56 is GRANTED. By no later than June 6, 2014, plaintiff shall file an

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opposition to defendants’ motion to dismiss under Rule 12(b)(6) and for

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summary judgment under Rule 56, and defendants shall file a reply to plaintiff’s

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opposition within 14 days thereafter.

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By no later than June 6, 2014, plaintiff also shall file a reply to defendants’
opposition to plaintiff’s motion for preliminary injunctive relief.
In view of the new briefing schedule set above, plaintiff’s motion (docket

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#78) for an extension of time to file the relevant opposition and reply papers is

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DENIED as moot.

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No further extensions of time will be granted.

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SO ORDERED.

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DATED: May 7, 2014
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.12\Martin, G.12-3193.or4.wpd

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