Anderson v. Wilson et al

Filing 39

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)

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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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