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- cod;;1:16-cv-02221_de121 RegisterActionDate "2018-01-31" @default.
- cod;;1:16-cv-02221_de121 RegisterActionDescriptionText "ORDER granting 121 MOTION to Amend/Correct/Modify Defendant's Answer. Defendants, including Deputy Mazotti, filed a motion to partially dismiss the second amended complaint or, alternatively, to convert the motion to a motion for summary judgment and dismiss the case. ECF No. 61. The alternative motion for summary judgment was based on the defense of failure to exhaust administrative remedies. The magistrate judge recommended that the motion to dismiss be converted to a motion for summary judgment and that the Court in large part grant summary judgment for failure to exhaust administrative remedies. ECF No. 90. Notably, however, the magistrate judge found that defendants "present no evidence proving that Mr. 7C2FC27 failed to exhaust his claim that Sheriff Mozatti placed him in disciplinary segregation, took away his free time, an made death threats because of Mr. 7C2FC27 refusal to stop filing grievances." Id. at 16. This Court accepted the recommendation. ECF No. 101. This indicates that defendant Mozatti clearly intended to assert failure to exhaust as an affirmative defense, and that counsel's failure to assert the defense in his answer plainly was an oversight. There is no unfair prejudice to the plaintiff in allowing defendant to correct that oversight, especially since trial is set more than six months from now, i.e., August 13, 2018. Accordingly, the motion to amend is granted. However, because the Court did consider the motion for summary judgment based on failure to exhaust administrative remedies, it will not entertain another motion for summary judgment from him based on failure to exhaust administrative remedies. By Judge R. Brooke Jackson on 1/31/18. Text Only Entry (rbjsec. ) (Entered: 01/31/2018)" @default.
- cod;;1:16-cv-02221_de121 AdministrativeID "122" @default.
- cod;;1:16-cv-02221_de121 OntologyLabel order @default.
- cod;;1:16-cv-02221_de121 hasReferenceToOtherEntry cod;;1:16-cv-02221_de120 @default.