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Tomas v. Neotti

December 8, 2009

BILBO TOMAS, CDCR #G-51177, PLAINTIFF,
v.
GEORGE NEOTTI, WARDEN; PAT COLSTON, COMMUNITY RESOURCE MANAGER; E. FRANKLIN, APPEALS COORDINATOR; BILL BROWN, CHAPLAIN, DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING DEFENDANTS MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b) AND 42 U.S.C. § 1997e [Doc. No. 11]

I. PROCEDURAL BACKGROUND

Tomas Bilbo ("Plaintiff"), a prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("Donovan") in San Diego, California, proceeding pro se and in forma pauperis, has filed a civil rights action pursuant to 42 U.S.C. § 1983.

Defendants Neotti, Colston, Franklin and Brown ("Defendants") have filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [Doc. No. 11]. Plaintiff filed his Opposition on October 30, 2009 [Doc. No. 18] to which Defendants have filed their Reply [Doc. No. 19].

The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Nita L. Stormes is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).

II. PLAINTIFF'S FACTUAL ALLEGATIONS

Upon Plaintiff's arrival at Donovan on March 12, 2009, he informed the Facility Sergeant that he is a practicing Rastafarian, and as such, his religious beliefs required a vegetarian diet. See Compl. at 3. Plaintiff further informed the Sergeant that the vegetarian diet was also helpful for his diabetes. Id. Later that day, Plaintiff was interviewed by a prison doctor who informed him that if he wished to have a vegetarian diet for medical reasons, he must go through "proper channels, because Donovan only allowed for specialized diets for prisoners who were on dialysis. Id. Plaintiff asked the prison doctor to speak with the facility chaplain to facilitate the diet for religious reasons as well. Id.

On April 26, 2009, Sergeant Bracomantis interviewed Plaintiff and told Plaintiff he was "checking into how I get my diet." Id. at 4. Plaintiff told Sergeant Bracomantis that his religious beliefs prohibit him from eating meat and a vegetarian diet helps to control his diabetes. Id. Plaintiff claims that since he has been forced to go without the vegetarian diet he has been unable to regulate his blood sugar levels which causes him to experience "migraine headaches, blurred vision, dizziness, severe cramps" and pain in his extremities. Id. Plaintiff submitted several requests to meet with the prison chaplain in order to facilitate obtaining a vegetarian diet but his requests never received a response. Id. Plaintiff also wrote requests to Defendant Colston, Community Resource Manager, and Defendant Franklin, Appeals Coordinator. Id.

Captain B. Morris came to visit Plaintiff on May 7, 2009 and issued Plaintiff a "temporary handwritten diet permit." Id. He further informed Plaintiff that the Supervisors and Sergeants in his facility had been "apprised as to my dietary needs." Id. However, two days later, Plaintiff was again denied his vegetarian diet. Id. On May 9, 2009, Plaintiff went to the "chow hall" and provided the note written by Captain Morris to Correctional Officer Thomas. Id. at 5.

Thomas refused to provide Plaintiff with the vegetarian meal and told Plaintiff "I don't care about your diet, I don't know or work for Captain [Morris], so if you don't want what is served get the hell out of the kitchen." Id.

III. DEFENDANTS'MOTION TO DISMISS PURSUANT TO FED.R.CIV.P.12(b)

The Court will first consider Defendants' arguments that Plaintiff's Complaint should be dismissed for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).

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

Defendants claim 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 non-judicial 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). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003)It is also well established that non-exhaustion of administrative remedies as set forth in 42 U.S.C. ยง 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119. ...


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