(PC)Jordan v. Arcee ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NOLAN JORDAN, ) Case No.: 1:20-cv-01658-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER REGARDING PLAINTIFF’S REQUEST 13 v. ) FOR CLARIFICATION REGARDING EXHAUSTION-MOTION DEADLINE 14 ARCEE, et al., ) ) (ECF No. 39) 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Nolan Jordan is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On October 12, 2021, the Court issued the discovery and scheduling order. 21 On January 12, 2022, Defendant filed an exhaustion related motion for summary judgment. 22 (ECF No. 38.) 23 On January 14, 2022, Plaintiff filed a request for clarification regarding the exhaustion motion 24 deadline. (ECF No. 39.) Plaintiff submits that he is not sure if he is required to comply with the 25 exhaustion-related deadline or if he is to oppose any action taken by Defendant. 26 Plaintiff is advised the failure to exhaust is an affirmative defense, and Defendant bears the 27 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); 28 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Therefore, it is not necessary to plead or 1 demonstrate exhaustion of the administrative remedies. As previously stated, on December 12, 2021 2 || Defendant filed a motion for summary judgment for failure to exhaust the administrative remedies an 3 || Plaintiff's opposition is due on or before February 7, 2022. Local Rule 230(1); Fed. R. Civ. P. 6. 4 5 IT IS SO ORDERED. A (Fe 6 Dated: _ January 18, 2022 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28