The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, a state prisoner proceeding through counsel, has requested that defendant Pletcher be dismissed without prejudice. Defendant Pletcher and the remaining defendants do not object to the dismissal without prejudice. Pursuant to Fed. R. Civ. P. 41(a), plaintiff's request shall be honored.
On March 14, 2013, the undersigned recommended that defendant Pletcher's motion to stay be granted. Because defendant Pletcher is dismissed, his motion to stay and the March 14, 2013 findings and recommendations are vacated.
On December 6, 2012, remaining defendants Osman, Bick and Aguilera filed a summary judgment motion on grounds that plaintiff failed to exhaust administrative remedies. On December 20, 2012, the court denied this motion without prejudice pending the court's ruling on defendant Pletcher's motion to stay.
On January 3, 2012, the court appointed counsel to represent plaintiff. On May 21, 2012, plaintiff's filed an amended complaint. On June 19, 2012, defendant Osman filed an answer to the amended complaint. On July 24, 2012, defendants Aguilera and Bick filed an answer to the amended complaint.
Following the filing of the amended complaint, the court did not set discovery or dispositive motion cut-off deadlines. For this reason, both parties shall submit status reports informing the court whether further discovery is required and, if so, the amount of time they anticipate to complete discovery.
If defendants still intend to argue that plaintiff failed to exhaust administrative remedies, they shall file an unenumerated Rule 12(b) motion within twenty-one days of the date of the date of this order. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (the proper method for asserting failure to exhaust administrative remedies is an unenumerated Rule 12(b) motion). Plaintiff does not require discovery in order to respond to this motion. The court will issue a further scheduling order after reviewing these documents.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Pletcher is dismissed without prejudice;
2. Defendant Pletcher's motion to stay (dkt. no. 162) and the March 14, 2013 findings and recommendations (dkt. no. 189) are vacated;
3. Within twenty-one days of the date of this order, defendants may file a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative remedies; if defendants do not intend to pursue this motion, they shall notify the court within that time; and
4. Within twenty-one days of the date of this order, both parties shall file status reports addressing whether additional time to conduct discovery is required.
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