Opinion
No. CV 13-2053-PHX-RCB (SPL)
04-17-2014
Arron Eugene Mowry, Plaintiff, v. Unknown Knight, et al., Defendants.
ORDER
Before the Court is a Motion to Dismiss filed by Defendants Knight and Evans (Doc. 12). The motion will be denied without prejudice to refiling.
In a recent decision, the Ninth Circuit held that the failure-to-exhaust defense must be raised by summary judgment; it is no longer considered a matter of abatement to be raised in an unenumerated Rule 12(b) motion. Albino v. Baca, --- F.3d ---, 2014 WL 1317141, at *1 (9th Cir. April 3, 2014), overruling Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).
The pending Motion to Dismiss for failure to exhaust was filed as an unenumerated Rule 12(b)(b) motion. Consequently, Plaintiff was not on notice of the standard to be applied to the exhaustion issue, nor was he apprised of the requirements under Federal Rule of Civil Procedure 56 and Local Rule of Civil Procedure 56.1. See Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc) (upon the filing of a summary judgment motion, a pro se prisoner must be given notice of the requirements under Rule 56). In addition, the Motion to Dismiss does not conform to the Local Rules governing summary judgment. See LRCiv 56.1. The Court therefore declines to construe Defendants' motion as one under Rule 56. Because neither party had the benefit of the Albino decision, the motion will be denied without prejudice to refiling as a summary judgment motion.
IT IS ORDERED withdrawing the reference to the Magistrate Judge as to Defendants' Motion to Dismiss (Doc. 12) and it is denied without prejudice to refiling as a summary judgment motion.
IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiff's Sur-Reply (Doc. 37) is denied as moot.
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Stephen M. McNamee
Senior United States District Judge