Loritz

ORDER DENYING DEFENDANT HORNUNG’S MOTION FOR CERTIFICATION OF ORDER FOR INTERLOCUTORY REVIEW

Defendant Thomas Hornung (“Defendant” or “Hornung”) has filed a motion for certification for interlocutory appeal of the Court’s order denying Hornung’s motion to dismiss for failure to exhaust administrative remedies. For the reasons discussed below, Defendant’s motion is DENIED.

I. BACKGROUND

Plaintiff is a state prisoner proceeding pro se who is currently incarcerated in R.J. Donovan Correctional Facility (“RJD”). This action arises from a California Department of Corrections (“CDC”) policy that precluded Plaintiff from participating in a Joint Venture Program due to the fact that he was in the Correctional Clinical Case Management System (“CCCMS”) program. The only remaining claims against Defendant are Plaintiffs Americans with Disabilities Act claim and Rehabilitation Act claim.

On October 28, 2002, Defendant filed an unenumerated Rule 12(b) motion to dismiss in which Defendant argued that Plaintiff had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). In an order filed on June 2, 2003, the Court denied Defendant’s motion. The…