(PC) Nunez v. Porter, et al, No. 2:2012cv02775 - Document 39 (E.D. Cal. 2014)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 4/18/14 ORDERING that the undersigneds amended findings and recommendations filed March 26, 2014 (ECF No. 36 ), are withdrawn; Defendants motion to dismiss for failure to exhaust administrat ive remedies (ECF No. 20 ), is denied without prejudice; The extension of time accorded to plaintiff for filing objections (ECF No. 38 ), is moot; and Defendants may file and serve, within thirty (30) days after the filing date of this order, a motion for summary judgment based on plaintiffs alleged failure to exhaust his administrative remedies.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS NUNEZ, JR., 12 Plaintiff, 13 14 No. 2:12-cv-2775 JAM KJN P v. ORDER K.M. PORTER, et al., 15 Defendants. 16 The Ninth Circuit Court of Appeals, in Albino v. Baca, __ F.3d __, 2014 WL 1344468 17 18 (9th Cir. Apr. 7, 2014) (en banc), recently held that a motion for summary judgment pursuant to 19 Rule 56, Federal Rules of Civil Procedure, not an “unenumerated 12(b) motion” to dismiss, is the 20 appropriate vehicle for challenging a prisoner’s claims based on an alleged failure to exhaust 21 administrative remedies. 22 In the present case, the undersigned properly considered defendants’ motion to dismiss 23 pursuant to the former procedure and standard; however, in light of Albino, that procedure and 24 standard no longer apply. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The undersigned’s amended findings and recommendations filed March 26, 2014 (ECF 27 No. 36), are withdrawn; 28 //// 2. Defendants’ motion to dismiss for failure to exhaust administrative remedies (ECF No. 1 2 20), is denied without prejudice; 3 4 5 3. The extension of time accorded to plaintiff for filing objections (ECF No. 38), is moot; and 4. Defendants may file and serve, within thirty (30) days after the filing date of this order, 6 a motion for summary judgment based on plaintiff’s alleged failure to exhaust his administrative 7 remedies, consistent with Albino v. Baca, __ F.3d __, 2014 WL 1344468; the motion shall 8 include notice to plaintiff of the evidentiary requirements for opposing the motion, see Woods v. 9 Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland. 10 11 SO ORDERED. Dated: April 18, 2014 12 13 /Nune2775.Albino.withdraw.F&R. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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