(PC) Nunez v. Porter, et al, No. 2:2012cv02775 - Document 42 (E.D. Cal. 2014)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 5/22/14 ORDERING that defendants and plaintiff are informed that the courts Amended Findings and Recommendations filed March 26, 2014 (ECF No. 36 ), is VACATED in its entirety.(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 On April 18, 2014, this court withdrew its Amended Findings and Recommendations filed 17 18 March 26, 2014 (ECF No. 36), and dismissed defendants’ related motion to dismiss (ECF No. 19 20), without prejudice to defendants filing a motion for summary judgment for failure to exhaust 20 administrative remedies, as procedurally required under Albino v. Baca, __ F.3d __, 2014 WL 21 1317141 (9th Cir. Apr. 3, 2014) (en banc). On May 19, 2014, defendants filed a motion for 22 summary judgment for failure to exhaust administrative remedies (ECF No. 40); the briefing on 23 that motion is now in progress. Also on May 19, 2014, defendants filed a request for clarification, to ascertain whether the 24 25 court’s withdrawal of its Amended Findings and Recommendations vacated only the portion 26 addressing exhaustion of administrative remedies, or whether defendants should “re-file their 27 Rule 12(b)(6) motion” for alleged failure to state a claim. (ECF No. 41 at 2.) 28 //// 1 Defendants are informed that no portion of the court’s Amended Findings and 2 Recommendations remains in effect. The court’s analysis of defendants’ motion to dismiss for 3 failure to state a claim argument was, in part, structured by its findings concerning plaintiff’s 4 alleged failure to exhaust administrative remedies. (See e.g., ECF No. 36 at 13 (“Due to the 5 recommended dismissal of plaintiff’s First Amendment claims against defendants Caraballo, Till 6 and Norton [for failure to exhaust], the court need not reach defendants’ motion to dismiss 7 plaintiff’s First Amendment claim against Caraballo for failure to state a claim.”).) Rather than 8 parse the analysis of plaintiff’s First and Fourteenth Amendment claims among various findings 9 and recommendations and district judge orders, the court will address these matters anew 10 11 pursuant to newly-filed motions. Accordingly, defendants and plaintiff are informed that the court’s Amended Findings and 12 Recommendations filed March 26, 2014 (ECF No. 36), is vacated in its entirety. 13 Dated: May 22, 2014 14 15 /nune2775.clar. 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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