United States District Court, S.D. California
September 6, 2005.
CALVIN DWAYNE HOLT, CDC #J-66891 Plaintiff,
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
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).
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
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.
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.
"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
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."
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.
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.
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