The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS BY DEFENDANTS CARTER, LOERA, IMPERIAL COUNTY AND IMPERIAL COUNTY SHERIFF'S DEPARTMENT
On April 2, 2008, plaintiff Adriana Fernandez ("Plaintiff") filed a complaint against defendants James Ray Morris, Harold Carter, Raymond Loera, the County of Imperial and the Imperial County Sheriff's Department. (Doc. No. 1.) On May 21, 2008, defendants Carter, Loera, the County of Imperial ("County") and the Imperial County Sheriff's Department ("ICSD," collectively with Carter, Loera and the County, "Defendants") filed a motion to dismiss Plaintiff's complaint. (Doc. Nos. 5-6.) Plaintiff filed a response in opposition on June 30, 2008. (Doc. No. 9.) Defendants have filed a reply. (Doc. No. 13.)
On July 10, 2008, the Court submitted the motions pursuant to Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court grants in part and denies in part Defendants' motion to dismiss Plaintiff's complaint.
On March 19, 2007, Plaintiff was charged in federal court with importing marijuana into the United States. (Compl. ¶ 2.) Plaintiff was sent to the Imperial County jail, which contracts with the United States Marshal's Service to detain certain federal inmates in El Centro, California. (Id.) Plaintiff alleges that defendant Carter was times the elected Sheriff of Imperial County. (Id. ¶ 8.) Plaintiff alleges that defendant Loera was the Sheriff of Imperial County at all relevant times after Carter left that position. (Id. ¶ 9.) Plaintiff's complaint asserts that Carter and Loera each acted as the commanding officer of the Imperial County Sheriff's Department and was responsible for the training, suspension, hiring and conduct of defendant Morris. (Id. ¶¶ 8-9.)
Plaintiff's complaint alleges that during March and April of 2007, while Plaintiff was detained at the Imperial County jail, defendant Morris, who was employed as a deputy sheriff and assigned by the ICSD to work as a guard at that facility, used his position as a guard to pressure and coerce Plaintiff into having sexual relations with him. (Id.) Plaintiff also alleges that defendant Morris infected her with syphilis. (Id. ¶ 14.) According to Plaintiff's complaint, on September 13, 2007, defendant Morris pled guilty to one felony count of violating California Penal Code § 289.6, which provides that "[a]n employee or officer of a public entity . . . who engages in sexual activity with a consenting adult who is confined in a detention facility is guilty of a public offense." (Compl. ¶ 17.) Defendant Morris, who does not join this motion to dismiss, filed an answer to Plaintiff's complaint. (Doc. No. 10.) In his answer, defendant Morris "admits he had consensual sexual relations with two other females incarcerated at Imperial County jail." (Answer ¶ 3.)
Plaintiff's complaint asserts several claims against the County, the ICSD and defendants Carter and Loera, both of whom Plaintiff has sued in their individual and official capacities: (1) deprivation of Plaintiff's federally protected constitutional rights, pursuant to 42 U.S.C. § 1983; (2) battery; (3) negligent hiring, retention, supervision, training and control; (4) negligence; (5) intentional infliction of emotional distress; (6) violation of Cal. Civil Code §§ 52.1 and 52.3; and (7) violation of the Unruh Civil Rights Act, Cal. Civ. Code §§ 51-51.3.*fn1 Plaintiff's complaint pleads several legal theories for imposing liability on Defendants based on the injuries that defendant Morris allegedly caused to Plaintiff. (See Compl. ¶¶ 25-28.) Plaintiff asserts that Defendants ratified or condoned defendant Morris's unlawful conduct, and/or that they acted with deliberate indifference to the rights and safety of Plaintiff. (Id. ¶ 30.) Plaintiff's complaint alleges that defendant Morris's sexual relationships with Plaintiff and other female inmates were known to other ICSD deputy sheriffs, including supervisory employees of the ICSD and the County who worked at the Imperial County jail. (Compl. ¶ 18.) Plaintiff also alleges that defendant Morris's actions resulted from official policy and/or a longstanding practice or custom of the County and the ICSD. (Id. ¶ 26.)
In the present motion to dismiss, Defendants seek dismissal of Plaintiff's federal and state law claims on two alternative grounds. First, Defendants contend that Plaintiff failed to exhaust her administrative remedies before bringing this lawsuit. Second, Defendants contend that, even if Plaintiff exhausted her administrative remedies, Plaintiff's complaint does not state a claim on which relief can be granted. As discussed below, the Court denies Defendants' motion to dismiss on exhaustion grounds, and grants in part and denies in part Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The federal Prison Litigation Reform Act ("PLRA") states, "[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). As a threshold matter, Plaintiff disputes whether her claim under 42 U.S.C. § 1983 is subject to the PLRA's exhaustion requirement, since she filed this action on April 2, 2008, subsequent to her March 15, 2008 release from the custody of the Bureau of Prisons. Plaintiff contends that at the time of filing she was not a "prisoner" within the meaning of the PLRA and, therefore, the PLRA's exhaustion requirement does not apply to this action.
For purposes of the present motion to dismiss, the Court concludes that Plaintiff's section 1983 claim is subject to the exhaustion requirement of the PLRA. Although at the time she filed this complaint Plaintiff no longer was confined at the Imperial County jail, Plaintiff is in a drug treatment program as a condition of her supervised release. Plaintiff's confinement in a drug treatment program is not voluntary, as her lawyer stated that he has limited access to Plaintiff as a result of her present detention. The PLRA defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h). Although the Ninth Circuit has not resolved this question, other circuits have concluded that the PLRA applies to halfway houses and drug treatment facilities. See Ruggiero v. County of Orange, 467 F.3d 170 (2d Cir. 2006) (halfway house); Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004) (drug treatment facility); compare Linares v. Jones, 2007 WL 1601725 at *4 (D.D.C. 2007) ("it is very doubtful whether the PLRA's exhaustion requirement applies to the circumstances surrounding Plaintiff's arrest and initial police custody").
Under the PLRA, exhaustion is no longer within the discretion of the district courts but is mandatory. Woodford v. Ngo, 126 S.Ct,. 2378, 2382 (2006). A prisoner must "exhaust all available remedies, not just those that meet federal standards." Id. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id. at 2386. The Ninth Circuit has stated that a Rule 12(b) motion to dismiss is "the proper pretrial motion for establishing nonexhaustion" of administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The Ninth Circuit, however, has also stressed that § 1997e(a) is an affirmative defense and, therefore, that the defendants asserting it "have the burden of raising and proving the absence of exhaustion." Id.; see Brown v. Valoff, 422 F.3d at 936 ("it is of central importance that § 1997e(a) is an affirmative defense"). It is the defendants' responsibility to come forward with evidence demonstrating the existence of administrative remedies available to the plaintiff. Brown v. Valoff, 422 F.3d at 937.
Here, Defendants provide evidence that at all times during Plaintiff's incarceration, the County jail had a grievance procedure pursuant to title 15, section 1073 of the California Code of Regulations. (See Decl. of Lt. Robert Cortez ISO Defs.' Mot. to Dismiss ("Cortez Decl.") ¶¶ 8-10.) Under that grievance procedure, an inmate may submit an Inmate Grievance Form regarding issues concerning their custody, medical attention and jail policies and procedures. (Id.) Resolution of a grievance cannot include payment of money, but can prompt an investigation and/or correction of the problem. (Id. ¶ 13.) Defendants contend that during her incarceration at the County jail from March 16, 2007 to May 11, 2007, Plaintiff did not submit any grievance(s) regarding alleged misconduct by defendant Morris or defendants Carter and Loera. (Id. ¶ 15.)
The Court concludes that Defendants fail to satisfy their burden of demonstrating that Plaintiff failed to exhaust all available administrative remedies. Brown v. Valoff, 422 F.3d at 936. The parties dispute whether Plaintiff submitted any grievance(s) or other claim(s) while incarcerated at the Imperial County jail or any subsequent location: Plaintiff alleges that she presented claims to both the County and the ICSD, while Defendants contend that she did not (or did not do so in a timely fashion). The Court need not resolve this factual dispute on the present motion to dismiss, because the Court concludes that Defendants fail to sufficiently demonstrate what (if any) administrative remedies in fact were available to Plaintiff. Although grievance forms are available at all times to inmates incarcerated in the jail's General Population, as Plaintiff was from March 16, 2007 to April 2, 2007, see Cortez Decl. ¶ 9, inmates housed in administrative segregation, as Plaintiff was from April 2, 2007 until May 11, 2007, must request a grievance form from a correctional officer. (See Cortez Decl. ¶ 10.) Here, Plaintiff's complaint alleges that defendant Morris was the correctional officer who controlled Plaintiff during her confinement in administrative segregation, including allegedly dictating the amount of Plaintiff's recreation time. (See Compl. ¶ 16.) Defendants have submitted a copy of a document, signed by Plaintiff, in which Plaintiff asserts that, after defendant Morris allegedly infected her with syphilis, she submitted "medical requests to be seen, but was ignored." (See Decl. of Jessica Cisneros ISO Defs.' Mot. to Dismiss, Ex. A.)
Additionally, Plaintiff alleges that on or about June 27, 2007, she was interviewed without counsel present (although Plaintiff allegedly stated her desire to have counsel present) by defendant Loera and another individual at a detention facility in San Diego. (Compl. ¶ 22.) Plaintiff alleges that she was in custody during the questioning, which allegedly took place in a small room and lasted approximately one hour, and that she did not feel free to refuse to answer questions or terminate the encounter. (Id.) Under these circumstances the Court concludes that Defendants fail to satisfy their burden to come forward with evidence demonstrating the existence of administrative remedies that in fact were available to Plaintiff. Brown v. Valoff, 422 F.3d at 937. Accordingly, the Court declines to dismiss Plaintiff's claim under 42 U.S.C. § 1983 on grounds of non-exhaustion.
Defendants also seek dismissal of Plaintiff's state law claims on grounds of non-exhaustion. See Wright v. State, 122 Cal. App. 4th 659, 668 (2004). For the reasons discussed above with respect to Plaintiff's federal claim, the Court denies Defendants' motion to dismiss Plaintiff's state law claims on exhaustion grounds. On this motion to dismiss, the Court does not reach Defendants' argument that Plaintiff's state law claims should be dismissed because Plaintiff ...