Anderson v. Wilson et al
Filing
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ORDER by Judge Yvonne Gonzalez Rogers denying without prejudice 16 Motion to Dismiss. Defendants must renew arguments in support of dismissal by way of a summary judgment motion. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 4/17/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANDREW S. ANDERSON,
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Plaintiff,
ORDER DENYING DEFENDANTS'
MOTION TO DISMISS WITHOUT
PREJUDICE
v.
W. J. WILSON, et al.,
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Defendants.
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No. C 12-5297 YGR (PR)
/
This is a federal civil rights action. Defendants' motion to dismiss (Docket No. 16) -- on
United States District Court
For the Northern District of California
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grounds that Plaintiff failed to exhaust his administrative remedies and failed to allege facts
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sufficient to establish the elements of any of his state law claims -- is DENIED without prejudice.
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Defendants' grounds for dismissal are more properly raised in a motion for summary judgment. No
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later than sixty (60) days of this Order, Defendants must renew their arguments in support of
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dismissal by way of a summary judgment motion, in light of the Ninth Circuit's recent ruling in
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Albino v. Baca, No. 10-55702, slip op. at 4 (9th Cir. Apr. 3, 2014) (en banc). The motion need raise
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only the issue of nonexhaustion, or other procedural concerns. If the motion is denied, Defendants
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can file a summary judgment motion addressing the merits of Plaintiff's claims.
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Plaintiff shall file any opposition to Defendants' motion within twenty-eight (28) days of the
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date the motion is filed. Defendants shall file a reply within fourteen (14) days of the date the
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opposition is filed. Defendants are reminded that a motion for summary judgment also must be
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accompanied by a Rand notice so that Plaintiff will have fair, timely and adequate notice of what is
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required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012)
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(notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served
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concurrently with motion for summary judgment).
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The Clerk of the Court is directed to terminate Docket No. 16.
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IT IS SO ORDERED.
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DATED:
April 17, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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P:\PRO-SE\YGR\CR.12\Anderson5297.denyMTD(exh)-Albino.frm
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