FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner without counsel, has filed this action under 42 U.S.C. § 1983 alleging that he was subjected to retaliation for having engaged religious activity protected by the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA" or the "Act"), codified at 42 U.S.C. §§ 2000cc, et seq. Currently pending before the court is defendant Moors' December 24, 2007, motion to dismiss.
This action proceeds on the complaint filed August 14, 2006. Following initial review of the complaint pursuant to 28 U.S.C. § 1915A, the court found that plaintiff stated claims for relief against defendant Moors. On February 13, 2007, defendant Moors moved to dismiss arguing that RLUIPA's framework does not apply to claims seeking redress for individual retaliatory acts. On December 5, 2007, the district judge adopted findings and recommendations, denied the motion to dismiss and ordered the defendant to answer the complaint withing twenty days. December 5, 2007, Order, at 2. Rather than answer defendant Moors filed a second motion to dismiss on December 24, 2007. That motion, styled as an "unenumerated Rule 12(b)" motion argues that one of plaintiff's claims should be dismissed for plaintiff's failure to exhaust the available state remedies as required by 42 U.S.C. § 1997e(a).*fn1
II. Standards Applicable to this Motion
The Ninth Circuit has stated that failure to exhaust as required by 42 U.S.C. § 1997e(a) is a matter in abatement to be resolved pursuant to a motion made under "unenumerated Rule 12(b)." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The Ninth Circuit reasoned that generally "summary judgment is on the merits," and a failure to exhaust is independent of the actual claims before the court. Wyatt, 315 F.3d at 1119. However, like nearly all motions challenging whether plaintiff has exhausted administrative remedies, defendants here rely on declarations and exhibits that are extrinsic to the complaint. Indeed, the United States Supreme Court has, since Wyatt, clarified that failure to exhaust is an affirmative defense which defendant has the burden of pleading and proving. Jones v. Bock, 549 U.S. 199, , 127 S.Ct. 910, 921 (2007). In Jones, the Court acknowledged that affirmative defenses appearing on the face of the complaint may be raised under Rule 12(b). Jones, 549 U.S. at , 127 S.Ct., at 921. But, in contrast to Wyatt, the Court explained that, "[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract."
Id. Thus, whether the defense goes to the merits is not the deciding factor in whether a defense is raised in a motion pursuant to Rule 12(b). The deciding factor is whether the defense is apparent from the pleadings. Jones, 549 U.S., at , 127 S.Ct., at 920 ("A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief."). Under Rule 12, when an affirmative defense is not apparent from the pleadings, the appropriate mechanism for resolving its applicability is summary judgment. Fed. R. Civ. P. 12(d) (where a party presents affidavits or other matters outside the pleadings in support of its motion, the court must treat the motion "as one for summary judgment under Rule 56."). Even Wyatt was clear that regardless of nomenclature, a motion attacking failure to exhaust is not a challenge to the sufficiency of the complaint. It is a motion in which defendant must raise and prove by evidence the absence of exhaustion. Id. Thus, Wyatt provides further guidance. It recognizes that when the district court looks beyond the pleadings to a factual record in deciding the exhaustion motion it necessarily does so under "a procedure closely analogous to summary judgment." Id., n.14. Moreover, after Wyatt, Ninth Circuit precedent has held that federal courts appropriately consider affirmative defenses, including failure to exhaust as required by 42 U.S.C. § 1997e(a), on summary judgment. Panero v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005).
Here, defendant's motion necessarily requires the court to consider the affidavits and exhibits presented for the purpose of proving the absence of exhaustion. Accordingly, the standards for a motion for summary judgment provide the proper mechanism for resolving the question of whether plaintiff satisfied the exhaustion requirement.
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See Northwest Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).
Focus on where the burden of proof lies as to the issue in question is crucial to summary judgment procedures. "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the opposing party must establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).*fn2 In this regard, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. In attempting to establish the existence of a factual dispute that is genuine, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631.
Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). However, the opposing party must demonstrate with adequate evidence a genuine issue for trial. Valandingham v. Bojorquez, 866 F.2d 1135, 1142 (9th Cir. 1989). The opposing party must do so with evidence upon which a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 252. If ...