The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT
Plaintiff David Maurice Gomez ("Plaintiff") is proceeding pro se in this civil rights action filed September 22, 2003. This action is proceeding on Plaintiff's amended complaint, filed October 21, 2003, against defendants Saddi, Bailey and German ("Defendants") for failure to protect, in violation of the Eighth Amendment of the United States Constitution.
On October 20, 2004, this Court ordered service upon defendants Scribner, Bailey, Saddi, German, Rocha, Costello and Luna. Pursuant to the Court's Discovery and Scheduling Order filed October 20, 2004, the deadline for filing pretrial dispositive motions was June 13, 2005. (Doc. 20.) After obtaining extensions of time, defendants Scribner, Bailey, Saddi, German, Rocha and Costello timely filed a motion for summary judgment on July 19, 2005. On December 15, 2005, the Court issued a Findings and Recommendation recommending that the motion be granted in part and denied in part. (Doc. 87.) On February 17, 2006, the Findings and Recommendations were adopted in full, and, inter alia, defendants Scribner, Rocha and Costello were dismissed from the action. (Doc. 90.)
On September 19, 2006, defendant Luna filed an answer to the amended complaint. (Doc. 102.) The Court then issued a second Scheduling and Discovery Order, which set forth a specific deadline for filing an unenumerated Rule 12(b) motion, in addition to a deadline for filing pretrial dispositive motions. (Doc. 104.) On November 29, 2006, Defendants Luna, Saddi, Bailey and German then filed a motion to dismiss the action pursuant to an unenumerated Rule 12(b) motion for failure to exhaust administrative remedies. (Doc. 106.) Then Magistrate Judge O'Neill issued an order noting that the deadline for filing pretrial dispositive motions was closed with respect to defendants Saddi, German and Bailey, and held that the motion would be treated as one only by defendant Luna. (Doc. 107.) Defendants filed a motion for reconsideration of the Court's order, arguing that the Court previously did not set a deadline by which defendants Saddi, German and Bailey needed to file a motion to dismiss for failure to exhaust, exhaustion of administrative remedies is jurisdictional, and it is in the interest of judicial economy. (Docs. 110, 112.)
Defendants' motion was denied by order filed February 5, 2007. (Doc. 114.) Then Magistrate Judge O'Neill held that the scheduling order applicable to defendants Saddi, German and Bailey was issued on October 20, 2004. (Docs. 20, 30, 33.) Then Magistrate Judge O'Neill explained that the second Scheduling Order was issued after defendant Luna waived service and filed an answer, and was applicable only to Plaintiff and defendant Luna. The order further stated,
Although the Court set a specific unenumerated Rule 12(b) motion deadline for defendant Luna on September 20, 2006, but did not set a specific unenumerated Rule 12(b) motion deadline for defendants Saddi, German, and Bailey on December 17, 2004, the addition of such a deadline separate and apart from the pretrial dispositive motion deadline was the result of an administrative change made to orders less than two years ago. The Court is unpersuaded that an administrative change it made to its orders is grounds for a valid argument that prior to the change, defendants had no opportunity to file an unenumerated Rules 12(b) motion. The Prison Litigation Reform Act was enacted in 1996, and prior to the change in the Court's scheduling order, defendants wishing to raise the affirmative defense of failure to exhaust did so by filing a motion on or before the pretrial dispositive motion deadline. Defendants had the same opportunity to file a motion to dismiss for failure to exhaust as does every litigant subject to a scheduling order. The fact that at that time the Court did not set a separate deadline is immaterial. Defendants' argument they did not have an opportunity to file a motion to dismiss for failure to exhaust because the Court did not set an unenumerated Rule 12(b) deadline is untenable. (Doc. 114, p.3:1-14.)
The Court found also that Defendants' argument that exhaustion is jurisdictional was without merit, and was unpersuaded by their argument regarding judicial economy. The Court, however, held that Defendants could file a motion seeking relief from a scheduling order upon a showing of good cause. By order issued the following day, the Court granted defendant Luna's motion to dismiss, and ordered the claims against her dismissed pursuant to 42 U.S.C. §1997e(a), without prejudice. (Doc. 115.)
On April 6, 2007, defendants Saddi, German and Bailey filed a further motion for reconsideration, or in the alternative, motion for relief from the Scheduling Order. (Doc. 121.) Defendants' motion for reconsideration was again denied. (Doc. 128.) The Court also declined to modify the Scheduling Order, finding that defendants had made no showing of due diligence and consequently no showing of good cause to warrant relief from the Scheduling Order.
This matter was subsequently scheduled for jury trial. Defendants filed their pretrial statement on February 2, 2009, and requested that the trial be bifurcated to first address the issue of whether Plaintiff exhausted his administrative remedies. (Doc. 175.) On April 6, 2009, the Court issued its Pre-Trial Order and ordered Defendants to file a pre-trial motion regarding exhaustion. (Doc. 188.) Defendants filed their motion on April 16, 2009, and on April 22, 2009, the Court issued an order vacating the trial date to allow Plaintiff sufficient time to respond. Plaintiff filed an opposition on April 24, 2009 and Defendants filed a reply on May 5, 2009. (Docs. 205, 208.)
On May 19, 2009, the Court issued an order providing Plaintiff with an opportunity to file a sur-opposition. (Doc. 209.) The Court noted that Plaintiff's opposition did not address the issue of whether his claims were exhausted. Rather, Plaintiff argued that nothing had changed since the Court's prior rulings and that Defendants' motion should be rejected in its entirety.
Plaintiff filed a sur-opposition on June 12, 2009. (Doc. 212.) Defendants have not filed a sur-reply. The ...