What is the test for a motion to dismiss for a failure to exhaust non-judicial remedies?

MultiRegion, United States of America

The following excerpt is from Baker v. Yates, Case No. 1:12-cv-00126-LJO-SAB (E.D. Cal. 2013):

"[T]he failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d, 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id.

Other Questions


When a motion to dismiss a preliminary injunction has been granted by the Court of Appeal, when the motion is also dismissed by the District Court on the basis of a failure to exhaust tribal remedies, does the motion merge into the final judgment? (MultiRegion, United States of America)
What is the test for a motion to dismiss a motion for failure to exhaust administrative remedies? (MultiRegion, United States of America)
Is a motion to dismiss based on a prisoner's failure to exhaust administrative remedies properly a motion under Federal Rule of Civil Procedure 12(b)? (MultiRegion, United States of America)
Is a motion to dismiss for failure to exhaust nonjudicial remedies valid? (MultiRegion, United States of America)
Is a motion to dismiss based on a prisoner's failure to exhaust administrative remedies properly the subject of a motion under Federal Rule of Civil Procedure 12(b)? (MultiRegion, United States of America)
Can a motion to dismiss an indictment be dismissed on a motion of dismissal? (MultiRegion, United States of America)
Does a motion to dismiss the motion for failure to prosecute for sexual assault have any grounds for dismissal? (MultiRegion, United States of America)
What is the test for opposing a motion to dismiss for failure to exhaust remedies? (MultiRegion, United States of America)
What is the test for dismissing a motion to amend or dismiss a motion alleging that the motion contains defects that can be cured by amendment? (MultiRegion, United States of America)
What is the test for dismissing or dismissing a motion to dismiss or dismiss information from the US Department of Justice? (MultiRegion, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.