(PC) Martinez v. Davey

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA RICARDO MARTINEZ, Case No. 1:16-cv-01658-JLT (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY DISCOVERY AND 13 v. SCHEDULING ORDER D. DAVEY, et al., (Doc. 72) 15 Defendants.

17 Defendants filed a motion seeking modification of the Court’s Discovery and Scheduling Order (Doc. 69) to extend the deadline for filing a motion to dismiss based on failure to exhaust administrative remedies by sixty days, or through April 30, 2021. (Doc. 72.) Defendants argue that good cause exists for their inability to meet a March 1, 2021, deadline to file a motion for summary judgment based on the exhaustion requirement. (Id.) Plaintiff filed a response in opposition, to which Defendants filed a reply. (Docs. 73, 74.)

23 Under the Prison Litigation Reform Act, the failure to exhaust administrative remedies is an affirmative defense that defendants must plead and prove. Jones v. Bock, 549 U.S. 199, 216 (2007) (construing 42 U.S.C. § 1997e(a)). Defendants may raise the affirmative defense of exhaustion by motion for summary judgment. See Campbell v. Borges, No. CIV S-06-1135 GEB EFB P, 2007 WL 2428306, at *1 (E.D. Cal. Aug. 23, 2007), findings and recommendations adopted, No. 2:06-CV-1135-GEB-EFB-P, 2007 WL 2853611 (E.D. Cal. Sept. 27, 2007).

1 Although the exhaustion motion deadline has passed, the Court is obligated to determine the issue of exhaustion as soon as possible. In addition, failure to comply with the PLRA is jurisdictional.

3 Thus, the Court will GRANT the defendants’ request. The defendants SHALL file the motion for summary judgment related to exhaustion, if at all, no later than June 1, 2021.

IT IS SO ORDERED.

Dated: March 31, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE