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Parmer v. Alvarez

January 7, 2010

DAVID EARL PARMER, CDCR #G-35622, PLAINTIFF,
v.
ISAIAH ALVAREZ; PEDRO CUEVAS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P.12(b) & 12(b)(6) MOTION TO DISMISS [Doc. No. 18]

I. PROCEDURAL HISTORY

On September 29, 2009, Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [Doc. No. 18]. Because Plaintiff had failed to file an Opposition and Defendants move to dismiss Plaintiff's First Amended Complaint ("FAC") on grounds that Plaintiff failed to exhaust administrative remedies prior to suit pursuant to 42 U.S.C. § 1997e(a), the Court issued an Order providing Plaintiff with Notice of Defendants' Motion pursuant to Wyatt v. Terhune and set a revised briefing schedule. See Dec. 1, 2009 Order at 6. Plaintiff was given leave to file an Opposition by Thursday, December 24, 2009. Id. However, to date, Plaintiff has failed to file an Opposition.

II. FACTUAL ALLEGATIONS

Plaintiff was formerly housed at Richard J. Donovan Correctional Facility. While Plaintiff was housed in this facility, he went to the Prison's medical facility for an examination. (See FAC at 3.) Plaintiff alleges that when the examination was completed the nurse told him to return to his cell but Plaintiff informed the nurse that he was unable to move. (Id.) Plaintiff further alleges that Defendants Alvarez and Ceuvas-Pedro, without warning, threw him on the floor. (Id.) He then claims that Defendant Alvarez "jump[ed] on [Plaintiff's] back with his knee" and used excessive force that caused him injuries. (Id.)

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

Defendants move to dismiss Plaintiff's claims 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 has failed to demonstrate that he exhausted his administrative remedies before filing suit, and on this basis alone, his First Amended Complaint must be dismissed." (Defs.' Mot. at 8.) Defendants, however, are applying the incorrect standard. 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 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. This is a position with which the United States Supreme Court agrees and has held that "failure 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, 217 (2007).

In their Motion, Defendants make the argument that Plaintiff's entire action should be dismissed because he "failed to demonstrate that he exhausted his administrative remedies." (Defs. Mot. at 8.) However, it is the burden of the Defendants to prove nonexhaustion, and here the Court finds that Defendants failed to provide any documentation or affidavit that would indicate whether or not Plaintiff properly exhausted his administrative remedies.

Thus, the Court finds that Defendants have failed to adequately develop the record to show that Plaintiff did not properly exhaust his administrative remedies. Defendants' Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b) is DENIED without prejudice.

IV. DEFENDANTS'MOTION TO DISMISS PER ...


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