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
The following excerpt is from Gregge v. Kate, No. 2:09-CV-2561-GEB-CMK-P (E.D. Cal. 2012):
A motion to dismiss based on a prisoner's failure to exhaust administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the
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