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HOLT v. HERNANDEZ

United States District Court, S.D. California


September 6, 2005.

CALVIN DWAYNE HOLT, CDC #J-66891 Plaintiff,
v.
ROBERT J. HERNANDEZ, et al.; Defendants.

The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge

(1) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b) AND 42 U.S.C. § 1997e(a); AND
(2) ORDER RE OSC; DECLINING TO IMPOSE SANCTIONS PURSUANT TO FED.R.CIV.P. 11(b)(2)
This Report and Recommendation is submitted to United States District Court Judge M. James Lorenz pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3 of the United States District Court for the Southern District of California.

I. Procedural Background

  On September 22, 2004, Plaintiff Calvin Dwayne Holt, an inmate currently incarcerated at California Medical Facility (CMF), filed a Complaint against Defendants Warden Robert J. Hernandez, Associate Warden Brenda Early, Associate Warden of Business Services Octavio Peraza, and Facility 1 Laundry Personnel Chris Howerton pursuant to 42 U.S.C. § 1983. The Complaint alleges three causes of action, each stating a violation of Plaintiff's Eighth Amendment right to freedom from cruel and unusual punishment, and Fourteenth Amendment rights to due process and equal protection of the law. Plaintiff alleges these violations occurred when Defendants regularly failed to provide inmates with clean bed linens, creating unsanitary conditions, and when prison administration subsequently failed to respond to Plaintiff's administrative appeal at the second formal level.

  On March 29, 2005, Defendants filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b). The motion was brought on grounds that Plaintiff failed to allege and exhaust all administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e.

  II. Factual Background

  On May 19, 2004, Plaintiff Calvin Dwayne Holt, a California state prisoner who was incarcerated at the R.J. Donovan Correctional Facility ("Donovan") in San Diego at the time of the alleged violations, claims he submitted a CDC Form 602 appeal to prison staff due to the prison's failure to regularly distribute bed linens to the inmates. Plaintiff requested compensatory and punitive damages, each in the amount of $5,000, and implementation of procedures upholding the inmates' rights to exchange their sheets weekly. Compl., Attach. 1 at 1. An informal level staff response was issued on May 28, 2004, stating that sheets were exchanged on a weekly basis and new sheets would be distributed once they arrived at the institution. Id. On May 29, 2004, Plaintiff filed his first formal level appeal seeking the same relief initially requested in his informal appeal.

  On July 6, 2004, the institution partially granted Plaintiff's appeal, stating that the Facility 1 clothing supervisor would continue to monitor clothing and linen needs. However, the institution stated that Plaintiff's allegations of staff misconduct, and his request for compensatory, and punitive damages had not been substantiated. Compl., Attach. 1 at 5. Plaintiff took his appeal to the second formal level on July 15, 2004, and amended it to include the defendants named in this complaint as persons Plaintiff believed to be responsible for the alleged constitutional violations. Compl., Attach. 1 at 2,6. On August 20, 2004, Plaintiff notified the Facility 1 Appeals Coordinator that he had not received a second level response to his appeal which was six days overdue. Plaintiff demanded a response to said appeal, or he would view his attempts at resolving the issue as "FUTILE", and initiate federal court proceedings. Compl., Ex. B, 2. On August 28, 2004, the institution responded to this notification, and stated that a response had been due by August 24 and an overdue notice would be sent. Compl., Ex B 1. Neither Plaintiff nor Defendants have provided a copy of any second level response.

  On September 22, 2004, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983. Judge Lorenz granted Plaintiff's motion to proceed in forma pauperis. The Court simultaneously screened the Complaint in order to make a preliminary determination as to whether the Complaint required sua sponte dismissal on grounds that it was frivolous, malicious, failed to state a claim, or sought monetary damages against defendants who were immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 4433, 446 (9th Cir. 2000) (§ 1915A). Finding sua sponte dismissal inappropriate, Judge Lorenz instead directed the U.S. Marshal to effect service on Plaintiff's behalf on December 28, 2004. Defendants filed a waiver of service of summons on January 11, 2005 which required Defendants to file an Answer or a motion pursuant to Rule 12 no later than March 11, 2005.

  On March 28, 2005, Plaintiff filed a motion for default judgment for failure by Defendants to plead or otherwise defend against Plaintiff's Complaint. Pls.' Mot. for Default J. at 1. The Court denied Plaintiff's motion on April 11, 2005, because Defendants had filed a motion to dismiss on March 29, 2005, shortly after the time Plaintiff's request for entry of default was filed with the Court. Defendants claim Plaintiff failed to exhaust all administrative remedies required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, before filing in federal court. Dfs.' Mot. to Dismiss at 1. Along with this motion, Defendants filed the declaration of A.L. Cota, the appeals coordinator at R.J. Donovan Correctional Facility, which alleges that there is no record indicating Plaintiff sought further review to the Director's level, the final level of appeal. Cota Decl., ¶ 4. However, the declaration of A.L. Cota also confirms Plaintiff filed a second level appeal and while the prison's computer record shows that a second level response was issued and "may have been granted;" however, "the terms and extent" of the response are "unknown because the second level decision could not be found despite diligent search." Id.

  On April 27, 2005, Plaintiff filed his opposition to Defendants' motion to dismiss. Plaintiff argues that he attempted to exhaust his administrative remedies before filing suit, but was obstructed from doing so by prison personnel. Pls.' Mem. P. & A. for Opp'n to Defs.' Mot. to Dismiss at 1. Plaintiff further alleges the Deputy Attorney General committed an impropriety because the Deputy submitted an "altered" page to the original 602 Appeal. Id. at 2. Defendants filed a reply to Plaintiff's opposition on May 9, 2005. Defendants claim that they failed to attach a "`D' Section Continuance" because Plaintiff is the only person in possession of that document. Defendants further claim that Plaintiff's allegation that Defendants submitted an "altered" continuance page to his appeal is meritless and irrelevant. Defs.' Mem. P. & A. for Reply to Pls.' Opp'n to Mot. to Dismiss at 1-2.

  III. Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P.12(b)

  Defendants move to dismiss Plaintiff's Complaint for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).

  A. Discussion

  1. Standard of Review per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a)

  Defendants claims Plaintiff failed to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, they seek dismissal under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust nonjudicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (finding a non-enumerated motion under Rule 12(b) to be "the proper pretrial motion for establishing nonexhaustion" of administrative remedies under 42 U.S.C. § 1997e(a)).*fn1 Wyatt also holds that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. Wyatt, 315 F.3d at 1119. However, unlike under Rule 12(b)(6), "[i]n deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120 (citing Ritza, 837 F.2d at 369).

  2. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)

  Before the Prison Litigation Reform Act ("PLRA") was enacted on April 26, 1996, prisoners pursuing civil rights claims under 42 U.S.C. § 1983 were not required to exhaust administrative remedies before filing suit in federal court. See Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 516 (1982). The PLRA amended 42 U.S.C. § 1997e(a) to provide however, that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a). is now mandatory." Porter v. Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to "afford ? corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general circumstances and particular episodes of prison life — including incidents of alleged excessive force. Id. at 532. Finally, "[t]he `available' `remed[y]' must be `exhausted' before a complaint under § 1983 may be entertained," "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner's civil rights action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if he fully exhausts while the suit is pending). The State of California provides its prisoners and parolees the right to administratively appeal "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." CAL. CODE REGS., tit. 15 § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing CAL. CODE REGS. tit. 15 § 3084.5). The third or "Director's Level" of review "shall be final and exhausts all administrative remedies available in the Department [of Corrections.]" Cal. Dep't of Corrections Operations Manual, § 54100.11, "Levels of Review;" Barry, 985 F. Supp. at 1237-38; Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001).

  3. Application of 42 U.S.C. § 1997e(a) to Plaintiff's Case

  First, Defendants claim Plaintiff failed to affirmatively allege that he exhausted his administrative remedies in his Complaint and this "alone should have convinced the Court to cull this complaint under 28 U.S.C. §§ 1915A and 1915(e)(2)*fn2 thereby complying with Congress' mandate and saving Defendants the time and expense of bringing this motion." Defs.' Mot. at 6 (citing Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002)). This argument is frivolous and ignores the central holding of current Ninth Circuit authority found in Wyatt. As Wyatt makes absolutely clear, the non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which Defendants have the burden of raising and proving. Wyatt, 315 F.3d at 1119. Second, Defendants argue that Plaintiff did not exhaust his administrative remedies because they claim he failed to submit his grievance to the third level or Director's Level of review. It is undisputed by the parties that Plaintiff submitted a first level grievance which was "partially granted" by prison officials on July 6, 2004. See Cota decl. at ¶ 4. The fact that Plaintiff's appeal was partially granted at the first level of review alone is sufficient for the Court to find that Plaintiff had exhausted his administrative remedies. See Brady v. Attygala, 196 F.Supp.2d 1016, 1022-23 (C.D. Cal. 2002) ("Because Brady's appeal was granted at the second level, the [California] Department of Corrections' own regulations would appear to indicate that further exhaustion on his part was not required) (citing CAL. CODE REGS., tit. 15, § 3084.5(d)); Gomez v. Winslow, 177 F.Supp.2d 977, 985 (N.D. Cal. 2001) ("[B]ecause [the inmate] had, in essence, `won' his inmate appeal [by receiving a "partial grant" at the second level], it would be unreasonable to expect him to appeal that victory before he is allowed to file suit."). Following the Brady and Gomez decisions, it is recommended that the Court find that Plaintiff has exhausted his administrative grievances when he first received the "partial grant" to his first level administrative grievance.

  It is also recommended that the Court categorically reject Defendants argument that Plaintiff did not exhaust his administrative remedies because he did not submit an appeal to the third or "Director's Level" of review. Despite the fact that Plaintiff had already received a partial grant at the first level of review, he proceeded to appeal his first level administrative grievance to the second level of review. It is, once again, undisputed by both parties that Plaintiff submitted an administrative grievance appeal to the second level of review on July 15, 2004. See Cota Decl. at ¶ 4. However, Defendants admit that prison officials have been unable "to locate a copy of the second level response, although their records indicate it may have been granted at that level on terms that remain unknown." See Defs.' Mot. at 2 (emphasis added).

  In order for Plaintiff to proceed to the third level of review, CDC regulations require him to complete the second formal level before he can file anything at the third level. See CAL. CODE REGS., tit 15 § 3084.5(c) ("The second formal level, with the exception provided in section 3084.7(d)(4)(B), shall be completed prior to the appellant filing at the third formal level."). Defendants admit, or at least have no evidence, that prison officials never provided Plaintiff with the second level response; so it is difficult to fathom just how Plaintiff could have possibly appealed to the third level of review.

  Defendants argue that Plaintiff "prematurely ended the administrative appeals process one step short of completion by refusing to appeal to the final, Director's level." See Defs. Mot at 7. It is perplexing to the Court how Plaintiff could have "refused" to comply with the exhaustion requirement when Defendants failed to provide Plaintiff with a second level response. The Defendants admit that they are not even able to provide the Court with a copy of this second level response because they cannot even locate it within their own records. Given that the Wyatt decision was issued in January of 2003, they should be well aware of the fact that it is their obligation to plead and prove Plaintiff's alleged failure to exhaust. See Wyatt, 315 F.3d at 1119. In order to prove their affirmative defense, Defendants must provide this Court with competent evidence to establish nonexhaustion. Id. at 1120. Instead, Defendants have chosen to bring this motion without any evidentiary support. Thus, it is abundantly clear to the Court that the Defendants have failed to meet their burden of proof. Id.

  While Defendants attempt to distinguish the recent Ninth Circuit decision in Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005) their argument is not supported by the actual holding of Ngo which they fail to discuss in their moving papers. The plaintiff in Ngo was placed in administrative segregation on October 26, 2000, as punishment for alleged "inappropriate activity" with volunteer Catholic priests. Ngo, 403 F.3d at 622. In December 2000, the plaintiff returned to the general prison population but was restricted from participating in "special programs" such as evening fellowship and Bible study sessions. Id. On June 18, 2001, the plaintiff appealed the disciplinary action. Id. The prison's Appeals Coordinator rejected the appeal as untimely because the plaintiff had not filed his appeal within fifteen working days of the December 2000 disciplinary action. Id. The Appeals Coordinator informed the plaintiff the decision to screen out his untimely appeal could not be appealed unless the plaintiff contended his appeal was in fact timely. Id. at 625. Six days later, plaintiff filed a second grievance contending his appeal was timely because he was challenging the continuing nature of his punishment. Id. at 622, 625. The Appeals Coordinator again rejected the appeal. Id. at 622, 625. The plaintiff then filed an action in federal district court that was dismissed for failure to exhaust. Id. at 622, 625. The district court reasoned that only a decision at the third formal level of appeal exhausts a prisoner's administrative remedies. Id. at 625.

  The Ninth Circuit reversed. Id. at 631. Finding that the purpose of exhaustion under the PLRA resembles administrative exhaustion and not exhaustion of a habeas corpus claim, the Ngo court held that failure to timely exhaust a prison's administrative remedies does not procedurally bar a subsequent suit in federal court. Id. at 627-31. The plaintiff therefore had exhausted all administrative remedies available to him because his administrative appeal was deemed time-barred and "he could go no further in the prison's administrative system; no remedies remained available to him." Id. at 625, 631.

  The Ninth Circuit held that defendants, in order to demonstrate a failure to exhaust, "must specify which remedies remain available" to Plaintiff following the decision of prison administrators. Id. at 626. As was the situation in Ngo, Defendants have not demonstrated to this Court or to Plaintiff any "guidance on how [Plaintiff] can cure his supposed failure to exhaust." Id. It is undisputed that without receiving a negative response to his second level appeal, Plaintiff was unable to proceed to the third level of review. To find Plaintiff's claims unexhausted under these circumstances would impose the procedural default doctrine onto the PLRA's exhaustion requirement in contravention of Ngo.

  Accordingly, for all the reasons stated above, this Court recommends that Defendants' Motion to Dismiss Plaintiff's Complaint for failing to exhaust his administrative remedies pursuant to FED. R. CIV. P. 12(b) be DENIED.

  IV. Order to Show Cause

  On August 5, 2005, this Court issued an Order to Show Cause (OSC) in this matter [Doc. No. 38]. In this Order, the Court issued an OSC requiring defense counsel to appear and "show cause why sanctions, including all such sanctions authorized by law, should not be imposed against Mr. GERMAN for filing a written motion [Defendants' Notice of Motion and Points and Authorities in Support of Motion to Dismiss] in violation of Federal Rule of Civil Procedure 11(b)(2)." See Aug. 5, 2005 Order at 1. In addition, Defendants' counsel was ordered to appear and "be prepared to address the merits of Defendants' Motion to Dismiss." Id.

  In response to the OSC, on August 12, 2005, Defendants' counsel filed a Memorandum of Law [Doc. No. 39] as well as a Declaration in Response to the OSC [Doc. No. 40]. On August 17, 2005, Defendants counsel appeared personally and Plaintiff appeared telephonically for oral arguments regarding the OSC.

  A. Standard of Review

  Federal Rule of Civil Procedure 11 prohibits lawyers from filing papers with the court that are: (1) "presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the costs of litigation," or (2) not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." FED.R.CIV.P. 11(b)(1)-(2); United Nat. Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001).

  "Rule 11 . . . imposes an objective standard of reasonable inquiry which does not mandate a finding of bad faith." Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991); G.C. & K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1110 (9th Cir. 2003) ("As with frivolous pleadings, whether a paper is filed for improper purpose is tested by objective standards.") (quotations omitted). The subjective intent of counsel is of no importance. Instead, the court applies a reasonable person standard. G.C. & K.B. Invs., Inc., 326 F.3d at 1109 ("The `reasonable man' against which conduct is tested [for purposes of Rule 11] is a competent attorney admitted to practice before the district court.").

  B. Discussion

  FED.R.CIV.P. 11(b)(2) provides that "[b]y presenting papers to the court . . ., an attorney . . . is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances," that the "claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." In this matter, Defendants' counsel was asked to show cause why he argued in his moving papers that this Court failed to satisfy its duties under 28 U.S.C. §§ 1915(e)(2) and 1915A when such an argument is clearly not supported by either of those statutes or published Ninth Circuit case law. In their moving papers, Defendants argue that had this Court followed through with its supposed "duty" to sua sponte dismiss Plaintiff's Complaint for failing to exhaust his administrative remedies, the Court would have saved "Defendants the time and expense of bringing this motion." See Defs.' Mot. at 6. First, as previously discussed, neither 28 U.S.C. § 1915(e)(2) nor § 1915A specifically authorize the Court to sua sponte dismiss a § 1983 prisoner complaint for failing to exhaust their administrative remedies. The grounds upon which the Court may sua sponte dismiss a prisoner's complaint are: (1) the action is frivolous and malicious; (2) fails to state a claim upon which relief can be granted; and/or (3) is seeking monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) & 1915A. At the time Defendants' filed their motion, the Court had already fulfilled its obligations under the PLRA by screening Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A prior to ordering its service on December 28, 2004. See December 28, 2004 Order (Granting Motion to Proceed IFP and Directing Service per 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(2) [Doc No. 8].)

  As the Ninth Circuit made clear in Wyatt, failure to exhaust is an affirmative defense which Defendants must plead and prove. See Wyatt, 315 F.3d at 1119. Defendants fail to address this central holding in their moving papers. At the hearing on the OSC, Defendants' counsel argued that he need not address the holding of Wyatt as he found that the Seventh Circuit case of Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002) was applicable to this case. Defendants' counsel cannot simply ignore relevant Ninth Circuit case law but instead has an obligation to set forth reasonable arguments as to why it should not be applied to the case at hand. Like the Ninth Circuit, the Seventh Circuit in Walker found that a prisoner's failure to exhaust administrative remedies is an affirmative defense which the defendants must plead and prove. Id. In his moving papers, Defendants' counsel cite only to the portion of Walker that states "it is true that when the existence of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarding as frivolous, the district judge need not wait for an answer before dismissing the suit." Id. However, the Seventh Circuit went on to state that "appropriate caution in its exercise [of sua sponte dismissal] is assured by the requirement that the validity of the defense be both apparent from the face of the complaint itself, and unmistakable, so that the suit is fairly described as frivolous." Id.

  While this Court does not necessarily disagree, in general, with the Seventh Circuit's suggestion that sua sponte dismissal is appropriate when an affirmative defense is clear from the face of the complaint, Defendants do not address how the Court can make such a decision when it would be contradictory to the Ninth Circuit's directives in Wyatt. As stated above, in Wyatt, the Ninth Circuit make it clear that the trial court must give a plaintiff "fair notice" of his opportunity to develop the record when the trial court is making a determination as to whether or not a plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e. See Wyatt, 315 F.3d at 1120, fn. 14.

  Here, it is conceded in the moving papers filed by the Defendants that they lack the evidence to meet their burden under Wyatt because they are unable to locate the records pertaining to Plaintiff's administrative appeals. Further, Plaintiff claims that Defendants never supplied him with the proper response to his administrative appeals. Despite that fact, Defendants' counsel argued to the Court at the hearing on the OSC and in their moving papers that the "supporting evidence" demonstrates that Plaintiff failed to exhaust his administrative remedies. See Defs.' Memo of Law at 4. However, the "supporting evidence" is Defendants own admission that they cannot locate a copy of the second level of response in their own records nor can they prove that they ever provided Plaintiff with a copy that is required for him to proceed to the third level of review.

  The Court was further troubled by use of selective quotations from Ninth Circuit decision in Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005) that appear to be taken out of context. Moreover, as was the case with the defense's handling of the Wyatt case, Defendants' counsel fails to address the central holding of Ngo. Defendants' counsel argued that the decision by the Ninth Circuit in Ngo could not "overcome" the "scattered" Congressional mandates which find that no exceptions apply to the exhaustion requirement. See Defs.' Mot. at 7. The actual holding of Ngo finds that where prison administrators actions affirmatively prevent a prisoner from exhausting his administrative remedies, defendants must specify what remedies remain "available" to a prisoner in order to demonstrate a failure to exhaust. See Ngo, 403 F.3d at 626. At the hearing, Defendants' counsel indicated that they should be excused for their failure to properly cite to the Ngo case because it had only been issued five days before Defendants had filed their motion. It would seem to the Court that five days is sufficient to read and properly analyze a published Ninth Circuit opinion. Moreover, Defendants had the opportunity to supplement their analysis of Ngo in their reply which was filed more than fifty days after the Ngo decision was decided.

  The Court expressed serious concern with the advocacy presented by defense counsel in his moving papers and at the OSC hearing. As stated above, the Court is specifically concerned with the decision by Defendants' counsel to file this motion to dismiss given that they had no evidence to support their claim that Plaintiff did not exhaust his administrative remedies, he failed to cite to or attempt to distinguish the holding of relevant Ninth Circuit binding decisions, and selectively cited to case law to potentially mislead this Court.

  Nonetheless, because a reasonable person may conclude that some of the claims in Defendants' motion may be warranted by existing law and others constitute "nonfrivolous" arguments for the extension or limitation of existing law, the Court will not impose sanctions pursuant to FED.R.CIV.P. 11(b)(2) at this time.

  V. Recommendation and Order

  For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order DENYING Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) [Doc. No. 14-1]. It is further recommended that the Court issue an Order requiring Defendants to file an Answer to Plaintiff's Complaint. IT IS ORDERED that no later than September 30, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be filed with the Court and served on all parties no later than October 14, 2005. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

  IT IS FURTHER ORDERED that while Defendants' Motion to Dismiss contains some inaccurate and misleading statements of binding Ninth Circuit authority regarding the exhaustion of administrative remedies pursuant to 42 U.S.C. § 1997e(a) and Defendants' burden of proof, the Court finds that it does contact some "nonfrivolous" arguments which might liberally be construed to argue for limitations on existing law. Therefore, the Court will not impose sanctions pursuant to Rule 11(b)(2) at this time.

20050906

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