The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P.12(b) & 12(b)(6); AND (2) DISMISSING DEFENDANTS R. CONTRERAS AND J. RODRIGUAS FOR FAILURE TO PROSECUTE PURSUANT TO FED.R.CIV.P. 4(m) [Doc. No. 16]
On November 24, 2009, Defendants filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [Doc. No. 16]. Because Defendants moved, in part, to dismiss Plaintiff's Complaint 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 briefing schedule. (See Dec. 1, 2009 Order at 2-3.) Plaintiff filed his Opposition [Doc. No. 32] to which Defendants Hernandez, E. Contreras, Fredrick and Lagdaan filed a Reply. Defendants R. Contreras and J. Rodriguas have not yet appeared in this action.
On July 15, 2008, Plaintiff was housed at the Richard J. Donovan Correctional Facility ("Donovan"). (See Compl. at 3.) Plaintiff attempted to speak to Correctional Officer Fredrick to request a cell move. (Id.) Defendant Fredrick "become agitated" and told Plaintiff to return to his cell. (Id.) Plaintiff "explained to Fredrick" that he had "problems with his [cellmate] and needed a cell move." (Id.). Defendant Fredrick then "escorted Plaintiff" to his cell. (Id.) As Plaintiff began to walk toward his cell, "Fredrick took his arm around [Plaintiff's] chest area, and slammed Plaintiff to the floor." Plaintiff alleges he was then "punched and kicked" in the head by Defendant Fredrick. (Id.) Defendants Lagdaan, Rodriquez*fn1 , and R. Contreras arrived and "helped Fredrick in assaulting the Plaintiff by punching and kicking the Plaintiff." (Id.) As a result, Plaintiff claims he suffered from "head trauma, bruises on the face, ear, neck, chest, and shoulder, and lasting pain on neck and back of head." (Id.)
III. REQUEST FOR JUDICIAL NOTICE
Defendants have filed a "Request for Judicial Notice" which they indicate is the "attached official record, consisting of a letter from the Victim Compensation and Government Claims Board (VCGCB) in response to Plaintiff's Juan Munoz's claim #G577884." In reviewing the documents attached to this request, there is the letter as referred to by Defendants but there are an additional thirty five (35) pages of documents that Defendants fail to provide any authentication or statement about where these documents came from. Federal Rules of Evidence 201 provides, in part, that the Court may take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED.R.EVID. 201(b)(2). These documents appear to include documents from the California Department of Corrections and Rehabilitation but there is no supporting declarations authenticating these documents. Moreover, as stated in detail below, Defendants have the burden of proving that Plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. There appears to be documents relating to this defense in Defendants' request for judicial notice. However, as supported by the documents attached to Plaintiff's Opposition, Defendants failed to provide the entire record related to Plaintiff's attempts to exhaust his administrative remedies. Thus, the Court will GRANT Defendants' Request for Judicial Notice only as to the letter from the California Victim Compensation and Government Claims Board ("VCGCB") dated October 31, 2008 and DENY Defendants' Request for Judicial Notice as to all the remaining documents.
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 argue that "Plaintiff has failed to provide documents that demonstrate that he exhausted his administrative remedies before filing suit, and on this basis alone, his Complaint must be dismissed." (Defs.' Mot. at 13.) 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)).
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).
While Defendants offer no details to support their position that Plaintiff failed to exhaust other than attach several documents without any reference in their Motion itself, it is clear that Plaintiff has properly exhausted his administrative remedies with respect to his Eighth Amendment claims. Attached to Plaintiff's Opposition is the Director's Level Appeal Decision dated April 20, 2009 regarding his claims that correctional officers used excessive force against him on July 15, 2008. (See Pl.'s Opp'n at 6.) Specifically, this document states "[t]his decision exhausts the administrative remedy available to the appellant within the CDCR." (Id. at 7.) Given that Defendants fail to rebut this document in their Reply to Plaintiff's Opposition, the Court finds that Defendants failed to provide any documentation or affidavit that would indicate that Plaintiff had not properly exhausted his administrative remedies. Accordingly, Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) is DENIED.
IV. DEFENDANTS'MOTION TO DISMISS PER FED.R.CIV.P. 12(b)(6)
Defendants seek dismissal of Plaintiff's Complaint pursuant to Rule 12(b)(6) on the following grounds that: (1) Plaintiff's State Law claims are not timely under the California Tort Claims Act; (2) Plaintiff has failed to state an Eighth Amendment claim against any of the named Defendants; (3) Defendants Hernandez and E. Contreras cannot be held liable ...