Hayes

I. BACKGROUND

20 Hayes alleges that various medical and correctional staff at Pelican Bay State Prison 21 violated his rights under the Eighth Amendment when they forced him to wear prison-issued 22 underwear, which contains synthetic materials to which he is allergic. Defendants moved for 23 summary judgment on grounds that Hayes failed to administratively exhaust his claims before 24 filing suit. (Dkt. No. 33.) Without expressly ruling on the motion for summary judgment, I 25 referred the matter for settlement. (See Dkt. Nos. 39, 42.) The case did not settle. (See Dkt. Nos. 26 41, 44.) Thereafter, I issued an order directing Hayes to file an amended complaint, noting that 27 suit. (Dkt. No. 33 at 1.) Defendants seek reconsideration of that order, arguing that the proper remedy for an inmate’s failure to follow the Prison Litigation Reform Act’s pre-suit exhaustion requirement “is an immediate dismissal of the action without prejudice, and not to hold the litigation in abeyance to allow exhaustion and allow the inmate to amend solely to allege he has since exhausted.” (Dkt. No. 46 at 1.) II. MOTION FOR RECONSIDERATION …