The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner incarcerated in the State of Delaware, proceeding pro se, seeks relief pursuant to 42 U.S. C. § 1983. Pending before the court are California defendants, E. Brown and M. Cate's motion to dismiss for failure to exhaust administrative remedies and in the alternative, motion for summary judgment, filed on September 18, 2008, to which plaintiff filed his opposition, on October 2, 2008. Also pending is plaintiff's re-submission of his motion to compel filed on December 15, 2008.
II. Plaintiff's Allegations
The court borrows from its prior recitation of plaintiff's claims with appropriate modification. This action proceeds upon the amended complaint, filed on May 7, 2004,*fn1 against three defendants: Thomas Carroll, Warden, Delaware Correctional Center;*fn2 J.S. Woodford, Director of the (then) California Department of Corrections (now California Department of Corrections and Rehabilitation - CDCR); Bill Lockyer, Attorney General of California, California Department of Justice (DOJ).*fn3 Plaintiff's DNA was first taken upon request of California DOJ on December 9, 1998, and carried out by CDCR through the prison staff at the Delaware Correctional Center. Amended Complaint (AC), p. 3A. On October 21, 2002, a second sample of plaintiff's saliva and blood DNA, as well as finger and palm prints and photos, were taken pursuant to an order or request which was apparently issued pursuant to Cal. Penal Code § 296,*fn4 et seq. AC, p. 3A. Plaintiff is challenging the second taking in 2002 of his DNA blood and saliva samples and finger and palm prints. Plaintiff contends the DNA samples were obtained without due process.
Plaintiff was never notified either in 1998 or 2002 of the required DNA sample testing; had plaintiff refused to comply with the 2002 order, a prison disciplinary report would have been issued against plaintiff, which report would have served as a basis for the parole board to deny plaintiff parole. Id. The 2002 DNA testing was exactly the same testing performed in 1998. Id. DNA testing in plaintiff's case is a registration requirement as a condition of release. Id. Plaintiff's California state court habeas petitions with respect to the second DNA test were denied. AC, pp. 3A-3B & Exhibits C, D, E. Plaintiff alleges that the denial of his petition(s) constituted a denial of due process in the search and seizure of DNA samples from him; plaintiff is concerned that his DNA samples will not be properly safeguarded and that the DOJ could require additional DNA samples in the future. AC, p. 3B. Plaintiff seeks a declaratory judgment only.*fn5 See Order & Findings and Recommendations, filed on August 10, 2005, adopted by Order, filed on September 28, 2005. Plaintiff does not seek damages.
Plaintiff has subsequently clarified his position that the action as to the taking of the 1998 DNA samples is barred by the statute of limitations, that what is at issue is the constitutionality of the taking of the October, 2002 DNA samples. The court has found that the taking of the 1998 sample is provided as a "background or historical fact essential to his claim arising from the taking of a second DNA sample in 2002....[w]ithout this background fact, plaintiff could not challenge the constitutionality of the taking of the 2002 DNA sample...because his claim is premised on the allegation that to repeat the sample taking and testing subjected him to a constitutional deprivation." Id., at 8-9.
On December 22, 2004, defendants for CDCR and California DOJ filed a motion to dismiss this action on the grounds that plaintiff fails to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)6. That motion was denied on September 28, 2005.
On October 4, 2006, defendant Carroll, warden of the Delaware Correctional Center filed a motion to dismiss this action on the grounds that plaintiff had failed to exhaust his administrative remedies as required by the PLRA. The undersigned issued findings and recommendations denying the motion and noted the "two state" exhaustion issue to be unique.*fn6
Before the court now is the California defendants second motion to dismiss, for failure to exhaust administrative remedies, filed on September 18, 2008, nearly four years after the first motion to dismiss.
Defendants filed their answer on October 24, 2005. A Scheduling Order was filed on November 13, 2007, setting the discovery cutoff date (April 18, 2008), and the deadline for the filing of pretrial dispositive motions (September 19, 2008). Nevertheless, not until September 18, 2008, did these defendants bring this second motion to dismiss alleging plaintiff's failure to exhaust administrative remedies before filing this action, pursuant to nonenumerated Fed. R. Civ. P. 12(b).*fn7 In their favor, defendants did raise and preserve the affirmative defense of non-exhaustion in their answer, filed on October 24, 2005.
Under Fed. R. Civ. P. 12(b), as to the specifically enumerated grounds 1 through 7, the rule announces that "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." This court finds that although this motion is one that is brought under the nonenumerated grounds of Rule 12(b), that, similarly, such a motion, generally, is timely when it, too, is brought prior to the filing of an answer. This is so because defendants have ready access to the CDCR records, or lack thereof, to support the motion and, if they do not, they have the means to seek an extension of time before filing an answer from the court to be permitted to gather the requisite information. Moreover, this litigation had been proceeding for more than four years before ...