United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S EX PARTE APPLICATION
FOR LEAVE TO FILE PRE-ANSWER MOTION FOR SUMMARY JUDGMENT ON
EXHAUSTION OF ADMINISTRATIVE REMEDIES [ECF NO. 14]
Marcellas Hoffman is a federal prisoner proceeding pro se and
in forma pauperis in this civil action pursuant to Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, (1971). This matter was
referred to a United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
before the Court is Defendant's application for leave to
file a pre-answer motion for summary judgement on exhaustion
of administrative remedies, filed on August 18, 2017. (ECF
No. 14.) Defendant makes the request in light of the
procedures recommended by the Ninth Circuit in Albino v.
Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc),
cert. denied sub nom. Scott v.
Albino, 135 S.Ct. 403 (2014). Defendant asserts that he
was not properly served in this matter, and therefore the
time to respond to the complaint has not yet began to run.
Nevertheless, Defendant seeks leave to file a motion for
summary judgment pursuant to Federal Rule of Civil Procedure
56, before filing any responsive pleading, including any
potential motion under Federal Rule of Civil Procedure 12.
asserts that his motion can be filed within sixty days of the
Court's order. Defendant further asserts that should the
case survive summary judgment, then he intends to file a
motion to dismiss based on the recent Supreme Court decision
in Ziglar v. Abassi, 137 S.Ct. 1843, 198 L.Ed.2d 290
Federal Rules of Civil Procedure provide that a party must
serve an answer within 21 days after being served with the
summons and complaint or if service has been time waived
under Rule 4(d) within 60 days after the request for waiver
was sent. Fed.R.Civ.P. 4(a)(1)(A). Under Rule 56, a party may
move at any time, with or without supporting affidavits, for
summary judgment on part or all of the claims. Fed. R. of
Civ. Proc. 56(b). This means that a party may file a summary
judgment motion before filing an answer.
contrast to Rule 12(a), which extends the time to file an
answer when a Rule 12 motion is made, Rule 56 is silent about
whether filing a summary judgment motion tolls the time to
file an answer. Some courts have concluded that by analogy to
Rule 12(a), it is appropriate to extend the time to file the
answer until after the court decides the summary judgment
motion “where such motion adequately contests the
action.” See Mann v. Lee, No. C 07-00781
(MMC), 2009 WL 5178095 (N.D. Cal. Dec. 22, 2009) (collecting
cases and citing 10A Wright & Miller, Fed. Prac. &
Proc., § 2718 at 301 (3d ed. 1988)); Klebanow v. New
York Produce Exchange, 344 F.2d 294, 296 n.1 (2d Cir.
1965) (court has discretion to entertain pre-answer motion
for summary judgment); but see Tashima &
Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial
§ 8:881 (The Rutter Group 2015) (citing Modrowski v.
Pigatto, 712 F.3d 1166, 1170 (7th Cir. 2013) (the filing
of a motion for summary judgment under Rule 56 does not toll
the time to answer).
requests leave to file a motion for summary judgment based on
Plaintiff's failure to exhaust his available
administrative remedies pursuant to 42 U.S.C. §
1997e(a). Defendant argues that the motion promotes judicial
efficiency, as a ruling in Defendant's favor would
dispose of Plaintiff's claims.
Court finds that Defendant's proposed motion for summary
judgment adequately contests the action. Ray Bourhis
& Associates v. Principal Life Insurance Company,
2015 WL 7180621 (N.D. Cal. Nov. 19, 2015) (concluding that if
the motion adequately contests the action, it tolls the time
for filing an answer). Therefore, the Court shall exercise
its discretion to allow Defendant to file a pre-answer motion
for summary judgment, and shall toll the time for Defendants
to file an answer until decision on the motion for summary
the Court exercises its discretion in allowing a motion for
summary judgment to be filed pre-answer, Defendant is advised
that he may not claim to have not appeared for the purposes
of limited discovery, should that become an issue for
purposes of opposing the motion. Further Defendant has raised
in his motion a question of whether service of process has
been properly effected, and the possibility of bringing a
defense of insufficiency of service of process in this
matter. By granting leave for Defendant to file a pre-answer
motion for summary judgment under Rule 56, the Court makes no
ruling on any waiver of defense issues. If Defendant
disagrees, then he may file a response to the complaint and
IT IS ...