UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 11, 2009
KEVIN JACKSON, PLAINTIFF,
ALVARO C. TRAQUINA, M.D., CHIEF MEDICAL OFFICER/HEALTH CARE MANAGER, OF CALIFORNIA SATE PRISON-SOLANO OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; JASON A. ROHRER, M.D., AN INDIVIDUAL; XXX HSIEH, M.D., DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Kevin Jackson ("Plaintiff"), a California prisoner filed the instant complaint alleging violations of his Eighth Amendment rights under the United States Constitution. Currently before the Court is Defendants' Motion to Dismiss Plaintiff's complaint on grounds that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA").
As set forth below, because Defendants failed to introduce evidence adequate to establish that Plaintiff failed to exhaust his administrative remedies, Defendants' motion must be denied.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit "should be treated as a matter in abatement subject to an unenumerated Rule 12(b) motion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "[F]ailure to exhaust is an affirmative defense under the PLRA, and  inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Therefore, "defendants have the burden of raising and proving the absence of exhaustion." Wyatt, 315 F.3d at 1119.
Here, Defendants' Motion to Dismiss was supported by two declarations. Defs.' Mot. to Dismiss; Mem. of P. & A. Each declarant indicates that he or she searched the prison records to determine if Kevin Jackson, CDCR# D-30519, had filed an administrative appeal of the decision in question. Id. at Exs. A & B. Each declarant affirmed that Kevin Jackson, CDCR# D-30519 had not filed any such appeal. Id.
In response, however, Plaintiff asserts that Defendants in fact searched for the wrong Kevin Jackson. Plaintiff has attached evidence that indicates that his CDCR# is C-73980, not D-30519. Pl.'s Opp'n to Defs.' Mot. to Dismiss at Ex. A.
The evidence offered by the Defendants is accordingly inadequate to establish that Plaintiff failed to exhaust his administrative remedies. Because the burden is on Defendants to raise and prove the absence of exhaustion, Defendants' Motion to Dismiss is DENIED, without prejudice to renewing said motion upon an adequate evidentiary record.*fn1
IT IS SO ORDERED.