Filed: Apr. 08, 2014
Latest Update: Apr. 08, 2014
Summary: ORDER (1) STRIKING UNENUMERATED RULE 12(B) MOTION ON PROCEDURAL GROUNDS, (2) VACATING EVIDENTIARY HEARING AND ORDER FILED ON APRIL 2, 2014, (3) DENYING PLAINTIFF'S MOTIONS AS MOOT, AND (4) REQUIRING DEFENDANTS TO FILE RESPONSIVE PLEADING OR MOTION WITHIN THIRTY DAYS (Docs. 31, 32, 33, 82, 90 and 91) SHEILA K. OBERTO, Magistrate Judge. Plaintiff Kevin Darnell Bryant, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. 1983 on March 17
Summary: ORDER (1) STRIKING UNENUMERATED RULE 12(B) MOTION ON PROCEDURAL GROUNDS, (2) VACATING EVIDENTIARY HEARING AND ORDER FILED ON APRIL 2, 2014, (3) DENYING PLAINTIFF'S MOTIONS AS MOOT, AND (4) REQUIRING DEFENDANTS TO FILE RESPONSIVE PLEADING OR MOTION WITHIN THIRTY DAYS (Docs. 31, 32, 33, 82, 90 and 91) SHEILA K. OBERTO, Magistrate Judge. Plaintiff Kevin Darnell Bryant, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. 1983 on March 17,..
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ORDER (1) STRIKING UNENUMERATED RULE 12(B) MOTION ON PROCEDURAL GROUNDS, (2) VACATING EVIDENTIARY HEARING AND ORDER FILED ON APRIL 2, 2014, (3) DENYING PLAINTIFF'S MOTIONS AS MOOT, AND (4) REQUIRING DEFENDANTS TO FILE RESPONSIVE PLEADING OR MOTION WITHIN THIRTY DAYS (Docs. 31, 32, 33, 82, 90 and 91)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Kevin Darnell Bryant, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 17, 2011. This action is proceeding on Plaintiff's amended complaint against Defendants Schaefer, Lopez, Keldgord, Harrington, and Flynn ("Defendants") arising out of the policy and practice of crushing and floating Gabapentin and Tramadol, which led to internal injury to Plaintiff. Plaintiff alleges a claim for violation of his rights under the Eighth Amendment of the United States Constitution.
Pending before the Court is Defendants' motion to dismiss for failure to exhaust, filed on March 20, 2013. 42 U.S.C. § 1997e(a). The motion was filed pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), and it is currently set for an evidentiary hearing on June 19, 2014, due to the existence of factual disputes requiring an assessment of witness credibility. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010).
However, on April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca, No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Albino, 2014 WL 1317141, at *4 (quotation marks omitted). An unenumerated Rule 12(b) motion is no longer the proper procedural device for raising the issue of exhaustion. Id.
Accordingly, in light of the decision in Albino, it is HEREBY ORDERED that:
1. Defendants' unenumerated Rule 12(b) motion is STRICKEN from the record;1
2. The evidentiary hearing set for June 19, 2014, is VACATED;
3. The order filed on April 2, 2014, requiring the parties to meet and confer regarding witness issues is VACATED;
4. Plaintiff's motions regarding witness issues, filed on January 17, 2014, and March 24, 2014, are DENIED as moot in light of this order; and
5. Defendants have thirty (30) days from the date of service of this order within which to file a responsive pleading or motion.
IT IS SO ORDERED.
