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 Defendant appears to have indicated in error that he may make a motion for failure to 1

state a claim. A motion making the defense of failure to state a claim upon which relief can be

granted is one of six defenses that “shall be made before pleading.” Fed. R. Civ. P. 12(b). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAMES BRITTINGHAM,

Plaintiff, No. CIV S-04-0037 LKK DAD P

vs.

R. SANDHAM,

Defendant. ORDER

 /

On March 1, 2006, plaintiff filed a request to court deny defendant’s pretrial

motion for summary judgment. Defendant has not filed such a motion. As required by the

court’s order filed October 26, 2005, defendant has filed a status report in which he provides

information concerning pretrial motions that he may file in this case.1

Plaintiff was advised in the court’s November 17, 2005 order that it is the

defendant’s burden to litigate properly raised affirmative defenses. (Order filed Nov. 27, 2005, at

2 n.1.) A motion to dismiss for failure to exhaust administrative remedies may be made pursuant

to the non-enumerated portion of Fed. R. Civ. P. 12(b) at any time but preferably as soon as

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possible so that the issue can be resolved before the parties engage in extensive litigation. 

Defendant may file a motion for summary judgment pursuant to Fed. R. Civ. P. 56(b) “at any

time.” The court’s order filed December 27, 2004, provides plaintiff with detailed information

about responding to such motions. (See Order filed Dec. 27, 2004, at 3-5.)

In his March 1, 2006 request, plaintiff complains that defendant “is still

investigating and has not served me his findings.” Defendant has no obligation to serve findings

on plaintiff. Plaintiff also requests that the court set a date for a settlement conference. Plaintiff

cites the statement in defendant’s status report that he “would not oppose a settlement

conference, if this matter goes on to trial.” It does not appear that defendant desires a settlement

conference at this time. If this case is not resolved by dispositive motion, the court will consider

setting a settlement conference if both parties request it in their pretrial statements to be filed in

accordance with the scheduling order signed concurrently with this order. Plaintiff is informed,

however, that he may initiate settlement negotiations at any time by sending defendant’s counsel

a written settlement proposal. Correspondence between the parties regarding settlement shall not

be submitted to the court for filing. If the parties reach a settlement, defendant’s counsel may

prepare and file appropriate dispositional documents signed by both parties.

Plaintiff recently notified the court and defendant of an anticipated change of

address effective May 7, 2006. Plaintiff asks for a continuance to assure that no “holds or court

appearances” slow up his release. No continuance is necessary for this purpose, as no matters are

set for hearing in court at this time or by the concurrently signed scheduling order. Plaintiff is

directed to file and serve a document confirming his change of address after he is released. 

Plaintiff is cautioned that the mailbox rule applicable to documents filed by prisoners will not

apply to his filings after he is released. Plaintiff’s documents must be placed in the mail to the

court and to defendant’s counsel so that the documents are received on or before the deadline set

by court order or applicable rule.

/////

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Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s March 1, 2006 request to deny defendant’s pretrial motion is denied

because no such motion has been filed.

2. Plaintiff’s April 14, 2006 request for continuance is denied as unnecessary.

3. Plaintiff shall file a notice of confirmation of new address within twenty days

after his release.

4. The caption of this order reflects that the sole remaining defendant in this

action is R. Sandham, and the captions of documents filed by the parties in the future shall so

reflect.

DATED: April 25, 2006.

DAD:13

brit0037.reqden

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