The opinion of the court was delivered by: Carlos T. Bea United States Circuit Judge, sitting by designation
Order re Motion for Judgment on the Pleadings
Plaintiff Rod Ireland ("Ireland"), a California prisoner proceeding pro se, alleges a First Amendment retaliation claim under 42 U.S.C. § 1983 against Solano County Deputy Jesse Grapentine ("Grapentine"). Pursuant to an unenumerated Federal Rule of Civil Procedure 12(b) motion, Grapentine moves to dismiss the amended complaint based on Ireland's failure to exhaust administrative remedies as to this retaliation claim. Because Grapentine has filed an answer to the amended complaint, the court construes his motion to dismiss as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Ireland has failed to file an opposition. The Court GRANTS the motion for judgment on the pleadings, and ORDERS the Clerk of Court to close this case.
Ireland's amended complaint alleges, in pertinent part, as follows. On August 14, 2008, Deputy Grapentine applied "mechanical restraints" to Ireland to secure him during transport to a court appearance.*fn1 (Am. Compl. ¶ 11.) Although Ireland complained the restraints were too tight, Grapentine did not loosen the restraints. (Id. ¶ 12.) This incident resulted in meralgia paresthetica,*fn2 which required medical care. (Id. ¶¶ 13, 34. Then, on October 15, 2008, Grapentine applied mechanical restraints to Ireland to inflict pain in retaliation for inmate grievances Ireland filed against Grapentine. (Id. ¶ 19.) This incident required further unspecified medical attention. (Id.)
Ireland filed a pro se complaint against Grapentine and others on October 24, 2008, and his amended complaint on June 25, 2009. (Docket Nos. 1, 13.) This case was assigned to a magistrate judge and then a district court judge before being reassigned on December 23, 2008 to Judge Carlos T. Bea of the Ninth Circuit, who sits by designation. (Docket No. 9.)
At the preliminary screening stage, the Court dismissed with prejudice all claims other than Ireland's retaliation claim against Grapentine, because the doctrine of res judicata barred those other claims.*fn3 (Docket No. 15.) On May 17, 2010, Grapentine filed an answer to Ireland's amended complaint. (Docket No. 22.) On July 23, 2010, Grapentine filed a motion to dismiss the amended complaint pursuant to an unenumerated Rule 12(b) based on Ireland's failure to exhaust his administrative remedies. (Docket No. 25.) Grapentine served this motion on Ireland by mail on the same day. Ireland did not file an opposition by the August 13, 2010, deadline. L.R. 230(l) (providing that a prisoner's "[o]pposition, if any,... shall be served and filed by the responding party not more than twenty-one (21) days after the date of service of the motion."). Twenty-eight days have passed since the motion was filed and, therefore, the motion is deemed submitted. L.R. 135, 230(l).
Under the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requires "a prisoner [to] exhaust administrative remedies even where the relief sought... cannot be granted by the administrative process." Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). "Exhaustion is no longer left to the discretion of the district court, but is mandatory." Id. (internal citations omitted).
The Ninth Circuit has articulated two primary purposes for this exhaustion requirement. The first is to protect an administrative agency's authority by giving the agency the first opportunity to resolve a controversy before a court intervenes in the dispute. Ngo v. Woodford, 403 F.3d 620, 624 (9th Cir. 2005). The second is to promote judicial efficiency by either resolving the dispute outside of the courts, or by producing a factual record that can aide the court in processing a plaintiff's claim. Id. Thus, exhaustion must occur prior to filing the suit and the prisoner may not exhaust while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
In Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), the Ninth Circuit held that exhaustion of administrative remedies is an affirmative defense, and the proper method for defendants to establish nonexhaustion is to file an unenumerated Rule 12(b) motion to dismiss, rather than a motion for summary judgment. In deciding a motion to dismiss for failure to exhaust, "the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. If the Court concludes that the prisoner has not exhausted administrative remedies, the proper remedy is dismissal of the claim without prejudice. Id.
Where, as here, the defendant files a Rule 12(b) motion after he files his answer to the complaint, the Court can treat the motion as one for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). The Court must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The Court will grant judgment on the pleadings when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law. Id.
The Court deems Ireland's failure to oppose the motion for judgment on the pleadings as consent to the granting of the motion. See L.R. 230(l) ("Failure... to file an opposition... may be deemed a waiver of any opposition to the granting of the motion[.]"). The Court also grants the motion on its merits.
The amended complaint alleges that Grapentine applied waist chains to Ireland to inflict pain on him in retaliation for inmate grievance forms he had filed against Grapentine. This retaliation allegedly occurred on October 15, 2008 while Ireland was a pretrial detainee in the Solano County jail. (Am. Compl. ¶ 19.) The Solano County jail had a two-step inmate grievance procedure in place at the time.*fn4 (Cameron Decl. ¶ 3.) At the first step, an inmate must submit a written grievance form to the officer who patrols his prison floor within 5 days of the incident that is the subject of the grievance. (Id.) At the second step, the inmate ...