The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Doc. No. 43.]
Before the Court is Defendants' motion to dismiss the second amended complaint. (Dkt. No. 43.) Plaintiff filed an opposition on September 19, 2011. (Dkt. No. 49.) Defendants filed a reply on September 29, 2011. (Dkt. No. 55.) On February 9, 2012, the Magistrate Judge filed a report and recommendation granting in part and denying in part Defendants' motion to dismiss the second amended complaint. (Dkt. No. 119.) Plaintiff and Defendants filed objections to the report and recommendation. (Dkt. Nos. 122, 123.) Defendants filed a reply to Plaintiff's objection on March 7, 2012. (Dkt. No. 126.) Plaintiff filed an amended objection to the report and recommendation on March 7, 2012. (Dkt. No. 128.) On March 19, 2012, Plaintiff filed a sur-reply to Defendants' objections. (Dkt. No. 130.) For the reasons set forth below, the Court ADOPTS in PART and DECLINES to ADOPT in PART the report and recommendation granting in part and denying in part Defendants' motion to dismiss.*fn1
On December 21, 2010, Plaintiff Condalee Morris, a state prisoner proceeding pro se and in forma pauperis filed a complaint pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) On February 10, 2011, Plaintiff filed a first amended complaint. (Dkt. No. 7.) On July 22, 2011, Defendants filed a motion to dismiss the first amended complaint. (Dkt. No. 26.) On August 1, 2011, the Court granted Plaintiff leave to file a second amended complaint and denied Defendants' motion to dismiss as moot. (Dkt. No. 28.) On August 12, 2011, Plaintiff filed a second amended complaint ("SAC") against Defendants L. Mills, M. Barra, D. White, G.J. Janda, Mace and Jane Doe. (Dkt. No. 39.) Defendants Mace and Jane Doe have not yet been served or properly served.
On August 29, 2011, Defendants M. Barra, GJ Janda, L. Mills and D. White filed a motion to dismiss the second amended complaint. (Dkt. No. 43.) On September 19, 2011, Plaintiff filed an opposition. (Dkt. No. 49.) Defendants filed a reply on September 29, 2011. (Dkt. No. 55.) Plaintiff submitted additional documents supporting his opposition to Defendants' motion to dismiss. (Dkt. Nos. 77, 81, 83 & 85.) The Court permitted Defendants to file a supplemental reply. (Dkt. No. 92.) Defendants filed a supplemental reply on December 12, 2011. (Dkt. No. 96.)
On February 9, 2012, the Magistrate Judge filed a report and recommendation granting in part and denying in part Defendants' motion to dismiss the second amended complaint. (Dkt. No. 119.) Plaintiff and Defendants filed objections to the report and recommendation. (Dkt. Nos. 122, 123.) Defendants filed a reply to Plaintiff's objection on March 7, 2012. (Dkt. No. 126.) Plaintiff filed an amended objection to the report and recommendation on March 7, 2012. (Dkt. No. 128.) Plaintiff filed a sur-reply to Defendants' objections on March 19, 2012. (Dkt. No. 130.)
In the second amended complaint, Plaintiff alleges that Defendants Mills and Barra sexually assaulted Plaintiff and used excessive force in violation of the Eighth Amendment. (SAC at 5-9.)
Plaintiff also alleges Defendants Barra, Mace and Jane Doe violated his Eighth Amendment right to adequate medical care. (Id. at 10-13.) Plaintiff further alleges Defendants White and GJ Janda violated his Fourteenth Amendment right to due process. (Id. at 14-16.) Plaintiff's claims against Defendants arise out of an encounter Plaintiff had with Defendants Mills and Barra on August 12, 2010, the medical treatment Plaintiff received following this encounter, and a disciplinary hearing held on September 8, 2010 regarding the encounter. On August 29, 2011, Defendants filed a motion to dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative remedies as to the claims against Defendants Mills and Barra and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as to claims against Defendants White and Janda. (Dkt. No. 43.)
A. Service of Process as to Defendant Mace
A prisoner proceeding pro se and in forma pauperis is entitled to rely on the United States Marshal for service of the summons and complaint, provided the plaintiff has furnished the information necessary to identify and serve the defendant. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). A litigant relying on the marshal for service must provide the information necessary to effect service and must "attempt to remedy any apparent service defects of which [he] has knowledge." Puett, 912 F.2d at 274--75.
On August 12, 2011, Plaintiff filed a second amended complaint ("SAC") against Defendants L. Mills, M. Barra, D. White, G.J. Janda, Mace and Jane Doe. (Dkt. No. 39.) On June 6, 2011, the summons was returned unexecuted as to Mace as she no longer worked at the institution. (Dkt. No. 16.) On September 29, 2011, the summons was returned executed as to Defendant Mace at a confidential address. (Dkt. No. 56.) However, the Court notes that the U.S. Marshal did not personally serve Defendant Mace as required by Federal Rule of Civil Procedure 4(e), but mailed the complaint and summons to the confidential address. Second, the return receipt form was signed by a person named "Art" not Mace. (Id. at 2.) The Court concludes that service of process was not properly conducted by the U.S. Marshal. The Court ORDERS that the U.S. Marshal personally serve the summons and the second amended complaint to Defendant Mace at the confidential address.
B. Sua Sponte Dismissal of Defendant Jane Doe
The 120--day period for service of the summons and complaint applies to Doe defendants.
See Scott v. Hern, 216 F.3d 897, 911--912 (10th Cir. 2000) (upholding dismissal of an action against John and Jane Does for failure to effect timely service under Rule 4(m)); Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir.1998) (holding, in the alternative, that dismissal was proper pursuant to Rule 4(m) where the plaintiff failed to identify and serve an unknown defendant within 17 months of filing the complaint); Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (N.D. Ill.1995) (referring to Rule 4(m) and stating that "authorities clearly support the proposition that John Doe defendants must be identified and served within 120 days of the commencement of the action against them").
Plaintiff has not provided reasons why he has not identified and served Defendant Jane Doe. Accordingly, the Court sua sponte dismisses Defendant Jane Doe without prejudice for failure to timely pursuant to Federal Rule of Civil Procedure 4(m).*fn2
C. Scope of Review of Magistrate Judge's Report and Recommendation
The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). A district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
D. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e(a) to provide that "no action shall be brought with respect to prison conditions under § 1983, or any other Federal law, 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). Under the PLRA, exhaustion is no longer within the discretion of the district courts but is mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006). "Prisoners must now exhaust all available remedies, not just those that meet federal standards." Id. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id. at 90. A prisoner cannot satisfy the exhaustion requirement by "filing an untimely or otherwise procedurally defective administrative grievance or appeal." See id. at 83. However, once no remedy remains "available," a prisoner need not further pursue the grievance. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
A plaintiff who fails to exhaust available administrative remedies prior to filing suit is subject to dismissal on an "unenumerated Rule 12(b) motion, rather than a summary judgment motion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Nonexhaustion under § 1997e(a) is an affirmative defense and defendants have the burden of raising and proving the absence of exhaustion. Jones v. Bock, 127 S. Ct. 910, 919 (2007); Brown, 422 F.3d at 936 ("it is of central importance that § 1997e(a) is an affirmative defense").
An inmate is required to use the administrative process that the state provides in order to exhaust his administrative remedies. See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005). The administrative review process of the California Department of Corrections and Rehabilitation ("CDCR"), in 2010*fn3 when the alleged constitutional violations occurred, consisted of a grievance system for prisoner complaints, in which "any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Four levels of appeal existed: (1) informal resolution, (2) formal written appeal via a Form 602 grievance, (3) second level appeal to the institution head, and (4) third level appeal to the Director of the California Department of Corrections. At each level, the inmate must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision. Id. at 3084.6(c).
In their motion to dismiss, Defendants Mills and Barra argue that Plaintiff failed to exhaust administrative remedies. The Magistrate Judge concluded that Plaintiff failed to properly exhaust his administrative remedies as to his Eighth Amendment claim of sexual assault and excessive force against Defendants Mills and Barra and recommended that the Court grant Defendants' motion to dismiss without leave to amend. The Magistrate Judge also concluded that Plaintiff failed to properly exhaust his administrative remedies as to his Eighth Amendment claim of deliberate ...