ORDER GRANTING PLAINTIFF'S MOTIONS FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; GRANTING PLAINTIFF'S MOTION TO REINSTATE DEFENDANT ACOSTA; DENYING WITHOUT PREJUDICE DEFENDANTS' MOTIONS TO DISMISS; SERVING UNSERVED DEFENDANTS (Doc. nos. 44, 81, 83, 87, 89)

THELTON E. HENDERSON, District Judge.

On February 26, 2013, Plaintiff Kenneth Gibbs, an inmate at California State Prison-Sacramento (CSP-SAC), filed this civil rights action under 42 U.S.C. § 1983 raising twenty-three claims against forty defendants who worked at Pelican Bay State Prison (PBSP), where Plaintiff was formerly incarcerated. On April 24, 2013, the Court issued an Order dismissing the complaint with leave to amend and, on May 8, 2013, Plaintiff filed a first amended complaint (FAC).

On May 16, 2013, the Court ordered service of eight cognizable claims against twelve defendants. The claims found to be cognizable were: (1) an Eighth Amendment claim for deliberate indifference to serious medical needs against Dental Assistant Tupman; (2) an Eighth Amendment claim for deliberate indifference to serious medical needs against Dr. Crinklaw and Dr. Malo-Clines; (3) a First Amendment retaliation claim against Lt. Diggle for issuing a Rules Violation Report (RVR) against Plaintiff; (4) a First Amendment retaliation claim against Warden Lewis and Capt. Wood for transferring Plaintiff in order to force him to withdraw an administrative appeal; (5) a First Amendment retaliation claim against Counselor Royal, Officer Milton, and Capt. Wood for placing Plaintiff on C status in retaliation for Plaintiff's filing administrative appeals; (6) a due process claim against Lt. Anthony for denying Plaintiff's right to a witness at a disciplinary hearing; (7) an Eighth Amendment claim against Sgt. Acosta and Officer Castellaw for cruel and unusual punishment for leaking information about Plaintiff to other inmates; and (8) an Eighth Amendment claim against Officer Evans for using excessive force against Plaintiff.

On July 22, 2013, the Court received a letter from Plaintiff stating that Sgt. Acosta did not use excessive force against him. The Court construed this as Plaintiff's motion to voluntarily dismiss the claims against Sgt. Acosta and, on August 1, 2013, dismissed Sgt. Acosta from the action.

Plaintiff has filed two motions for leave to amend the complaint as well as a motion to reinstate Defendant Sgt. Acosta. Also before the Court are: a motion to dismiss filed by Defendants Evans, Royal, Lewis, Milton, Diggle, and Wood; and a separate motion to dismiss filed by Defendants Anthony, Castellaw, and Tupman.

I

Plaintiff seeks leave to file a second amended complaint (SAC) adding Dr. Thomas J. Martinelli as a defendant on his Eighth Amendment claim for deliberate indifference to serious medical needs. In his proposed SAC, Plaintiff alleges that on April 25, 2008, Dr. Martinelli performed a colonoscopy on Plaintiff at Sutter Coast Hospital. Plaintiff further alleges that Dr. Martinelli used contaminated and unsanitary instruments during the procedure, causing Plaintiff to become infected with herpes. These claims, liberally construed, state a claim of deliberate indifference against Dr. Martinelli.

Plaintiff correctly points out he originally filed his claim against Dr. Martinelli in Case. No. C. 13-02529 TEH (PR). This Court found the claims duplicative of the claims asserted in the instant action and dismissed Case. No. C. 13-02529. The Court, however, specifically granted Plaintiff leave to file an SAC in the instant action to add Dr. Martinelli as a defendant. (See Case. No. C. 13-02529 TEH (PR) at Dkt. 6.) Accordingly, Plaintiff's proposed SAC is proper, and his pending motions for leave to file the SAC are GRANTED.1

Because the SAC does not add new claims or new defendants other than Dr. Martinelli, the Court will not issue a new screening order. Rather, the action will proceed on the eight claims found cognizable in the Court's order of May 16, 2013 as well as the Eighth Amendment deliberate indifference claim against Dr. Martinelli, found cognizable herein.

II

Plaintiff has filed a motion to reinstate Defendant Sgt. Acosta in which Plaintiff clarifies that his July 22, 2013 letter was not intended as a voluntary dismissal of Defendant Acosta. Plaintiff states that his letter was intended to notify the Court of an error in the Court's May 6, 2013 Service Order. Specifically, in the body of the Order, the Court found that Plaintiff had stated a cognizable Eighth Amendment claim against Defendant Acosta for cruel and unusual punishment for leaking information about Plaintiff to other inmates. In the conclusion section of the Order, however, the Court incorrectly stated that the claim against Defendant Acosta was an Eighth Amendment excessive force claim.

Plaintiff is correct. Accordingly, Plaintiff's motion to reinstate Defendant Acosta is GRANTED. The Court VACATES its August 1, 2013 Order dismissing Defendant Acosta from the action. Plaintiff's Eighth Amendment claim against Defendant Acosta for cruel and unusual punishment will proceed.2

III

Defendants Evans, Royal, Lewis, Milton, Diggle, and Wood have filed a motion to dismiss Plaintiff's FAC based on failure to exhaust administrative remedies and failure to file within the statute of limitations. Defendants Anthony, Castellaw, and Tupman have filed a separate motion to dismiss Plaintiff's FAC based on improper joinder of unrelated claims against different defendants.

As discussed above, the Court has granted Plaintiff leave to file a second amended complaint. Therefore, the SAC is now the operative pleading herein. Accordingly, defendants' motions to dismiss are DENIED without prejudice to filing a renewed motion or motions addressing the claims in the SAC.

In light of the Ninth Circuit's recent opinion in Albino v. Baca, No. 10-55702, slip op. 1, 4 (9th Cir. Apr. 3, 2014) (en banc), the parties are advised that "an unenumerated motion under Rule 12(b) is not the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted." If Defendants seek to renew their arguments regarding Plaintiff's purported failure to exhaust administrative remedies, they must do so by way of a motion for summary judgment. See id.

IV

For the foregoing reasons, the Court hereby orders as follows:

1. Plaintiff's motions for leave to file a second amended complaint are GRANTED. Docket. Nos. 83, 89. The Clerk shall file Plaintiff's SAC. (Dkt. 89-1.) The Clerk is further directed to add Dr. Thomas J. Martinelli as a defendant on the docket in this action.

2. Plaintiff's motion to reinstate Defendant Sgt. Acosta is GRANTED. Docket No. 81. The Court's August 1, 2013 Order dismissing Defendant Acosta is VACATED.

3. Defendants' motions to dismiss are DENIED without prejudice. Docket Nos. 44, 87.

4. Defendant Martinelli has not been served.

Accordingly, the Clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the SAC in this matter, a copy of the Court's May 16, 2013 Service Order, and a copy of this Order on Dr. Thomas J. Martinelli at Sutter Coast Hospital in Crescent City, California.

5. The Court also notes that Defendants Dr. Malo-Clines and Dr. Crinklaw remain unserved. On September 6, 2013, the PBSP Litigation Coordinator provided forwarding addresses for these two Defendants. (See Dkt. 41.) Accordingly, the Clerk shall re-issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the SAC in this matter, a copy of the Court's May 16, 2013 Service Order, and a copy of this Order upon said Defendants at:

Counsel for Defendants is directed to inform the Court no later than thirty (30) days from the date of this order whether she will also represent Defendants Martinelli, Malo-Clines, and Crinklaw.

6. In order to expedite the resolution of this case, the Court orders as follows:

a. No later than sixty-three (63) days from the date this order is filed, Defendants must file and serve a motion for summary judgment or other dispositive motion. A motion for summary judgment also must be accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). If Defendants renew their argument that Plaintiff failed to exhaust administrative remedies, Defendants should also incorporate a modified Wyatt notice in light of Albino. See Wyatt v. Terhune, 315 F.3d 1108, 1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).

b. Plaintiff's opposition to the summary judgment or other dispositive motion must be filed with the Court and served upon Defendants no later than thirty-five (35) days from the date the motion is filed.

c. Defendants shall file a reply brief no later than fourteen (14) days after the date the opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion.

7. Any motion for an extension of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause.

8. Pursuant to the Court's Orders of April 24, 2013 and May 16, 2013, the Clerk shall terminate the following Defendants from this action: Carson, Huges, M. Davis, Arcuri, Rush, P. Butter, Gonzales, F. Andrade, D. Davis, D. Forkner, D. McDonald, C. Rippetoe, A. Schavone, J. Whitlaw, G. Pope, J. Clemons, V. Ryan, F. Flowers, C. Ducart, Turner, J. Barneburs, D. James, K. Osborne, Pepiot, K, Cruse, Feimer, and Hilton.

9. Finally, the Clerk is directed to correct the spelling of the name of Defendant Tupman on the docket by substituting "Tupman" for "Tubman."

This Order terminates docket numbers 44, 81, 83, 87, and 89.

IT IS SO ORDERED.