Francis Puente v. County of Los Angeles

Plaintiff Francis Puente appeals from both the district court’s order dismissing his action against the County of Los Angeles, the County of Los Angeles Sheriff, Lee Baca, and John H. Clark, and its denial of his post-judgment motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b)(1), 60(b)(3) and 6(b)(1), as well as Central District of California Local Rule 7-18. We have jurisdiction to review only the denial of Plaintiffs post-judgment motion, pursuant to 28 U.S.C. § 1291 , and we affirm.

First, the district court did not abuse its discretion by declining to vacate its dismissal order based on Plaintiffs claim that Defendants’ motion to dismiss was untimely. A motion to dismiss for failure to exhaust administrative remedies must be made as an unenumerated Fed. R.Civ.P. 12(b) motion, and need not be filed before a responsive pleading. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003); Fed.R.Civ.P. 12(b) (“A motion asserting any of these defenses [e.g., the defenses listed at 12(b)(1) — (7) ] must be made before pleading if a responsive pleading is allowed.”). Defendants asserted their exhaustion defense in their answer to the complaint, and…