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Hoang Minh Tran, Cdcr #Aa-5994 v. William D. Gore


November 14, 2012


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




In this civil rights case, Hoang Minh Tran ("Plaintiff"), formerly incarcerated at George F. Bailey Detention Facility ("GFBDF") in San Diego, is proceeding in pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a).

I. Procedural Background

In his Amended Complaint (ECF Dkt. No. 7), Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights arising in August 2009 while he was a pretrial detainee at GFBDF.

Plaintiff names only the following Defendants: Brandt O. Pile (erroneously sued as "Pile Doe"), Wilson Doe, Brown Doe, John Gill, Jane Doe, M.D., Lizzie Womack, and Sarandi Marina. See Amend. Compl. (ECF Dkt No. 7) at 1, 4. All other persons listed in the caption of this case were either dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2) & 1915A(b), see May 23, 2012 Order (ECF Dkt. No. 4), or were named as Defendants in Plaintiff's original Complaint (ECF Dkt. No. 1), but not-renamed as parties in his Amended Complaint (ECF Dkt. No. 7). "[A]n amended pleading supersedes the original." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted).

Defendants Pile, Marina and Womack have filed Answers to Plaintiff's Amended Complaint (ECF Dkt. Nos. 21, 22). However, the U.S. Marshal was unable to execute service upon Defendants "Brown Doe" and "Wilson Doe" because officials at GFBDF, where Plaintiff indicated they could be found, were "unable to identify" either official "due to multiple staff members with the same last name." (ECF Dkt. Nos. 11, 12.) The docket does not show service (either attempted, unexecuted, or executed) upon "Jane Doe, M.D." Thus, while Plaintiff's IFP status entitled him to U.S. Marshal service, his failure to either adequately identify Brown Doe, Wilson Doe, or Jane Doe, M.D., or otherwise provide the U.S. Marshal with more complete information as to their identities and where they might be served, requires dismissal of any claim as to these purported parties pursuant to FED.R.CIV.P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate).

Currently before the Court is Defendant Gill's Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) (ECF Dkt. No. 7). Plaintiff has filed a Response in Opposition (ECF Dkt. No. 24), to which Defendant Gill has filed a Reply (ECF Dkt. No. 20).

II. Factual Allegations

Plaintiff divides the claims in his Amended Complaint into three "counts," each asserting factual allegations against different defendants, and each invoking various bases of constitutional injury. See Amend. Compl. at 2-3 ("Count 1"); 4-5 ("Count 2); and 6-8 ("Count 3").

In "Count 1", Plaintiff claims that on August 1, 2009, while he was a pretrial detainee at GFBDF, Deputies Brown and Wilson "deliberately deprived [him] of his hygiene items" which were necessary for his "well-being" and "sanitary clean[liness]." (Amend. Compl. at 2.) Subsequently, Plaintiff alleges to have complained to Defendant Pile, a Sergeant in the Administrative Segregation Module where he was housed, that Brown and Wilson had deprived him of the "welfare package" they had given every other inmate in order to retaliate against him for his "alleged role [i]n a high-profile escape by a similar[ly] named inmate" who had been "wrongfully released on 10/29/2008 under Plaintiff's wife's bail bond money." (Id.; see also Pl.'s Decl. [ECF Dkt. No. 7-2, 7-3].)*fn1 Plaintiff claims that "[a]lthough Pile agreed to give [him] a hygiene package," he never received one. (Amend. Compl. at 2.)*fn2 Plaintiff asserts that both his placement and the conditions in "solitary confinement" for "19 long days" imposed an "extraordinary hardship" upon him because he was unable to brush his teeth or wash, his administrative grievances went unanswered, and he was subjected to a "living hell on top of [his] frail health."*fn3 (Id. at 2, 7.)

In Count 2, Plaintiff alleges that from June 1, 2009 to August 6, 2009, Defendants "John Gill, M.D., Jane Doe M.D., Lizzie Womack and Sarandi Marina (R. Nurses)" "denied ... his external hemorrhoid medication (Docusate Sodium 100 mg)." (Amend. Compl. at 4.) Plaintiff alleges to have made "verbal complain[ts]" to the Administrative Segregation Unit (ASU) "Rover Deputies John Doe(s) 1-3" and "nurses" whose job it was to deliver daily medication to inmates. (Id.) Plaintiff also claims to have filed "written grievances on the matter to GFBDF supervisor[s] from the San Diego County Sheriff's Department." In support, Plaintiff points to his Exhibit B, which appears to be a copy of an San Diego County Sheriff's Department "Inmate Grievance/Appeal of Discipline" form dated August 6, 2009. (Pl.'s Ex. B [ECF Dkt. No. 7-1] at 5.) In this grievance, Plaintiff claims to have filed medical sick call requests "in the past more than fifty five days" asking to be "seen by a county health care physician." Plaintiff complains of both "chronic hemorrhoid exterior pain" and a "weak heart." (Id.) This form is marked "received by RN #6557" on August 7, 2009. (Id.) However, Plaintiff contends GFBDF officials "purposefully failed to act" in response to his grievances "for more than sixty-five (65) painful days." (Amend. Compl. at 4.)

During that time, Plaintiff again alleges "all of the named defendants," including several unidentified and unserved Does, denied him medication for his painful hemorrhoids, in violation of the Eighth and Fourteenth Amendments and "in retaliation" for the "deep public embarrassment" caused by his "alleged" role in another inmate's "high-profile escape." (Id. at 4-5.)

In "Count 3" Plaintiff alleges that on August 6, 2009, Deputies Brown and Wilson "unlawfully confiscated [his] personal property," including a Holy Bible, and denied his "rights to his Catholic religious practice," which caused him to suffer anxiety attacks and "severe emotional distress." (Amend. Compl. at 6.)

Plaintiff concludes that "all named defendants" named in Counts 1-3 deprived him of property, medical care, and "wrongfully confine[d]" in Ad-Seg without a hearing, and that "retaliation ... lie[s] at the heart of these unconstitutional acts." (Id. at 8.) Plaintiff seeks general and punitive damages as well as an injunction preventing "future reprisal" and no "contact whatsoever upon [his] release." (Id. at 10.)

III. Defendant Gill's Motion to Dismiss Plaintiff's Amended Complaint

Defendant Gill seeks dismissal of Plaintiff's Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) on grounds that: (1) it fails to allege facts sufficient to show that he conspired and/or retaliated against Plaintiff; (2) it fails to allege facts sufficient to show he denied Plaintiff medical care in violation of the Eighth Amendment;*fn4 and (3) his medical care claims are unexhausted. (Def.'s P&As in Supp. of Mot. to Dismiss [ECF Dkt. No. 19-1] at 2-7.)

A. FED.R.CIV.P. 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted).

A motion to dismiss should be granted, however, if the plaintiff fails to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009).

The court need not accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555 (on motion to dismiss court is "not bound to accept as true a legal conclusion couched as a factual allegation."). "The pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

Claims asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines, 404 U.S. at 519-20; Erickson, 551 U.S. at 94. Because "Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings, [courts] continue to construe pro se filings liberally when evaluating them under Iqbal." Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (noting that courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.")).

In addition, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings, except for exhibits which are attached. SeeFED.R.CIV.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Casualty Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal ... is the complaint." Schneider, 151 F.3d at 1197 n.1. The court may also review "materials of which the court may take judicial notice." Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994), including public records and "proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. Nov. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

B. Conspiracy and/or Retaliation Claims

Defendant Gill first seeks dismissal on grounds that, to the extent Plaintiff's claims against him are "predicated on conclusory allegations of a conspiracy to violate [his] Eighth Amendment rights," they are insufficient to state a claim upon which § 1983 relief can be granted. (Def.'s P&As in Supp. of Mot. to Dismiss [ECF Dkt. No. 19-1] at 3-4.) The Court agrees.

To state a claim for conspiracy, Plaintiff must allege specific facts showing two or more persons intended to accomplish an unlawful objective of causing him harm and took some concerted action in furtherance of that goal. Gilbrook v. City of Westminster, 177 F.3d 839, 856--57 (9th Cir. 1999). In other words, Plaintiff "must show 'an agreement or "meeting of the minds" to violate constitutional rights.'" Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2006) (citing Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege facts showing an agreement among the alleged conspirators to deprive him of his rights); Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege at least facts from which such an agreement to deprive him of rights may be inferred). Conclusory allegations of wide-spread conspiracy, however, are insufficient to state a valid § 1983 claim. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam); see also Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.""); Aldabe, 616 F.2d at 1092 (holding conclusory allegations of conspiracy insufficient to support a claim under section 1983).

With respect to Defendant Gill specifically, Plaintiff alleges only that he acted with "deliberate indifference" to Plaintiff's medical needs by denying him external hemorrhoid medication for a period lasting 65 days. (Amend. Compl. at 4.) Plaintiff further alleges to have "plead[ed] to the (GFBDF) jail officials," including "5A Rover Deputies John Does 1-3" and "nurses who[] deliver[ed] daily medications to inmates," and to have filed administrative complaints with "jail officials" regarding his "vulnerability" and "frail health condition," and to have suffered from painful bowel movements and a bleeding rectum, (id. at 5), yet his Amended Complaint contains no further factual support to suggest or show that Defendant Gill's action or failure to act with regard to his medical care was the result of some agreement with any other person intended to violate Plaintiff's constitutional rights. See Hart, 450 F.3d at 1069; Margolis, 140 F.3d at 853. Instead, it merely contains "conclusory allegations" of wrongdoing which are insufficient as a matter of law to state a claim to relief that is "plausible on its face." Ivey, 673 F.2d at 268; Aldabe, 616 F.3d at 1092; Iqbal, 129 S. Ct. at 1949 (noting a complaint does not satisfy either FED.R.CIV.P. 8 or FED.R.CIV.P. 12(b)(6) if it only "tenders 'naked assertion[s]' devoid of 'further factual enhancement.'") (quoting Twombly, 550 U.S. at 557).

To state a claim based on retaliation, Plaintiff must plead: (1) a particular state actor took some adverse action against him; (2) the adverse action was taken because he engaged in conduct protected by the First Amendment; (3) the adverse action actually chilled the exercise of his First Amendment rights; and (4) the adverse action did not reasonably advance a legitimate penological purpose or goal. Rhodes v. Robinson, 408 F.3d 559, 567--68 (9th Cir. 2005).

Just as his Amended Complaint contains only vague and conclusory allegations of a widespread conspiracy involving "all defendants," including Gill, to deprive him of personal property and deny him medical care, it also fails to include any factual support for a claim based on retaliation. While Plaintiff alleges all Defendants "took adverse action," e.g., denied him a "welfare package," hemorrhoid medication, and a Bible, and "wrongfully confin[ed]" him in AdSeg. (Amend. Comal. at 2-8), he does not allege these acts were taken against him because he exercised any constitutional right, or that his First Amendment rights were in any way "chilled" as a result. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (retaliation claim requires allegation that constitutionally protected conduct was a "substantial" or "motivating" factor in the defendant's decision to act); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) ("[Without alleging a chilling effect, a retaliation claim without allegation of other harm is not actionable.") (citation omitted).

Instead, Plaintiff alleges only that "the named defendants act[ed] maliciously in retaliation for his 'alleged' high-profile escape." (Amend. Compl. at 5.) Thus, even if the Court were to presume GFBDF officials segregated Plaintiff because they suspected he was involved in another inmate's escape and limited his privileges as a result, these allegations actually defeat, and do not support, his claim of retaliation. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (plaintiff must allege retaliatory action "does not advance legitimate penological goals, such as preserving institutional order and discipline."); Procunier v. Martinez, 416 U.S. 396, 412 (1974) (recognizing "the preservation of internal order and discipline, [and] the maintenance of institutional security against escape" as legitimate penological interests).

Accordingly, the Court finds Plaintiff's Amended Complaint fails to alleges facts sufficient to state either a conspiracy or retaliation claim, and GRANTS Defendant Gill's Motion to Dismiss those claims pursuant to FED.R.CIV.P. 12(b)(6).

C. Inadequate Medical Treatment Claims

Next, Defendant Gill argues Plaintiff has failed to state an Eighth Amendment claim against him related to his medical care. (Def.'s P&As in Supp. of Mot. [ECF Dkt. No. 19-1] at 5-6.)

Although the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment's prohibition of cruel and unusual punishment, applies to pretrial detainees, Bell v. Wolfish, 441 U.S. 520, 537 n.16 (1979), courts in the Ninth Circuit apply the same standards in both cases. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1243-44 (9th Cir. 2010)

(applying deliberate indifference standard to medical care claims raised by estate of suicidal pretrial detainee); see also Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir 2003) (applying deliberate indifference standard to diabetic pretrial detainee's claims of inadequate medical treatment).

A prison or jail official cannot be liable for deliberate indifference unless he or she "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, the pretrial detainee must allege the official was "(a) subjectively aware of the serious medical need and (b) failed adequately to respond." Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010) (citing Farmer, 511 U.S. at 828). Thus, "[d]eliberate indifference is a high legal standard," and claims of medical malpractice or negligence are insufficient to establish a constitutional deprivation. Simmons v. Navajo County, 609 F.3d 1011, 1019 (9th Cir. 2010) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)).

In his Amended Complaint, Plaintiff alleges only that "[f]rom June 1, 2009 to August 6, 2009," he "was denied ... external hemorrhoids medication (Docusate Sodium 100 mg) by defendants John Gill, M.D., Jane Doe, M.D., Lizzie Womack, and Sarandi Marina (R. Nurses)." (Amend. Compl. at 4.) Plaintiff further claims to have complained to and to have filed "written grievances on the matter" with "ASU 5S Rover Deputies John Does 1-3" and unidentified nurses who "deliver[ed] daily medications." (Id.) Plaintiff further claims to have "plead[ed] to the (GFBDF) jail officials (supervisory) for immediate intervention," but to no avail. (Id.) Nowhere in his Amended Complaint, however, does Plaintiff identify Dr. Gill as one of the persons to whom he complained.*fn5

Defendant Gill does not argue that Plaintiff's medical needs were not sufficiently "serious" to warrant constitutional protection. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting that a "serious" medical need exists [under the Eighth Amendment] if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain."). Defendant Gill does assert, however, that Plaintiff's medical care claims of "deliberate indifference," much like his conspiracy and retaliation claims, are merely "conclusory allegations with no factual support" and are insufficient to show that he had the "sufficiently culpable" state of mind required to suggest any "deliberate indifference" on his part. (Def.'s P&A's in Supp. of Mot. at 6.) Specifically, Defendant argues that Plaintiff "never clarifies or established any interaction between himself and Dr. Gill," and that his pleading contains no "identification of specific actions taken by Dr. Gill." Instead, Plaintiff merely includes Gill in a "list" of defendants who are alleged to have denied Plaintiff "an over-the-counter oral stool softener." (Id.)

The Court agrees that Plaintiff's Amended Complaint indeed fails to allege facts sufficient to show that Dr. Gill was personally responsible for the denial of his hemorrhoid medication, that he was aware of Plaintiff's serious medical need, and that even if he knew of Plaintiff's plight, that he subjectively failed to adequately respond under the circumstances. Conn, 591 F.3d at 1096. "Deliberate indifference" exists only when a prison official "knows of and disregards an excessive risk to inmate health and safety; the officials must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; Toguchi, 391 F.3d at 1057; see also Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) ("[Difference of medical opinion" between a prisoner and his physicians concerning the appropriate course of treatment are "insufficient as a matter of law, to establish deliberate indifference.").

Thus, while Plaintiff claims "jail officials ... purposefully failed to act" in response to his "dire grievance petitions," and that he suffered for 65 days with painful hemorrhoids as a result, his Amended Complaint, at least with respect to Dr. Gill, contains only the type of "unadorned ... the defendant-unlawfully-harmed-me accusation[s]," that are insufficient to state a plausible claim upon which a claim for § 1983 relief can be granted. Iqbal, 129 S. Ct. at 1949 (a complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'") (citing Twombly, 550 U.S. at 570).

For these reasons, Defendant Gill's Motion to Dismiss Plaintiff's inadequate medical care claims is GRANTED pursuant to FED.R.CIV.P. 12(b)(6).

D. Exhaustion

Finally, Defendant Gill claims Plaintiff "failed to exhaust his administrative remedies with respect to the claim that [he] violated [Plaintiff's] Eighth Amendment rights" and therefore those claims must also be dismissed pursuant to 42 U.S.C. § 1997e(a). (Def.'s P&A's in Supp. of Mot. to Dismiss [ECF Dkt. No. 19-1] at 7-8.) Specifically, Defendant notes that while Plaintiff claims to have filed "many administrative grievances and other protests," he does not "specifically identify the exhaustion of remedies as to Dr. Gill." (Id.)

42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 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). Compliance with the exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532; see also Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001) (requiring exhaustion regardless of whether the specific remedy sought by the prisoner is "available" within the administrative grievance procedure). However, non-exhaustion under § 1997e(a) is an affirmative defense, and Defendant Gill carries the burden of raising and proving its absence. Jones v. Bock, 549 U.S. 199, 216 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (same).

Here, Gill argues that Plaintiff has failed to exhaust "in accord with Jones" because he

simply "check[ed] a box on [his] form [Amended Complaint]," and "alleged actions from various defendants at different periods of time," but his "generic statements ... as to exhaustion do not "specify the areas in which he initiated administrative remedies as to Dr. Gill." (Def.'s P&As in Supp. of Mot. to Dismiss at 7.) But Jones clearly holds that the "failure to exhaust [under § 1997e(a)] is an affirmative defense ...[and] inmates are not required to specially plead or demonstrate exhaustion in their complaints." 549 U.S. at 216. Instead, it is Defendant Gill who must "demonstrate" Plaintiff's failure to exhaust, by providing documentary evidence, including affidavits, which serve as proof of Plaintiff's administrative grievance records and do more than simply "describe the inmate appeals process." Id.; Wyatt, 315 F.3d at 1119-20 (noting defendant prison officials' "superior access to prison administrative records in comparison to prisoners, especially, as is often the case, when prisoners have moved from one facility to another."). In this case, Defendant Gill fails to provide any evidence whatsoever as to Plaintiff's administrative grievance record. Therefore, he has not carried his burden under Jones or Wyatt.

Moreover, to the extent Defendant suggests Plaintiff's incomplete or non-specific allegations related to exhaustion by themselves satisfy his burden of proving Plaintiff's failure to exhaust, he is mistaken. In Wyatt, the Ninth Circuit found that while exhaustion is an affirmative defense, "[a] prisoner's concession to non-exhaustion is a valid ground for dismissal." 315 F.3d at 1120. However, Plaintiff's exhaustion allegations fall far short of "conceding" his failure to satisfy 42 U.S.C. § 1997e(a). First, while he is not required to plead exhaustion at all, when asked on the Court's form Civil Rights Complaint, "Have you previously sought and exhausted all forms of informal or formal relief from the proper administrative officials regarding the acts alleged in Part C above? [E.g., CDC Inmate/Parolee Appeal Form 602, etc]?", Plaintiff checked the "Yes" box. (Amend. Compl. at 9.)

And while Plaintiff does further claim that "many" of his administrative grievances "went unanswered and [were] ignored," this cannot fairly be counted as a "concession" to non- exhaustion--nor does it necessarily establish that he failed to exhaust any of his claims. See Wyatt, 315 F.3d at 1120 (finding dismissal under § 1997e(a) inappropriate where "the record is not clear" regarding prisoner's exhaustion concession); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) ("[T]here can be no 'absence of exhaustion' unless some relief remains 'available,'" therefore, "a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process, or through awaiting the results of the relief already granted as a result of that process.").

Thus, because Defendant Gill shoulders the burden of establishing non-exhaustion, but provides the Court with nothing more than Plaintiff's own contradictory statements regarding his attempts to use GFBDF's administrative grievance process as proof, the Court DENIES his Motion to Dismiss Plaintiff's claims to the extent it is premised on a failure to exhaust pursuant to 42 U.S.C. § 1997e(a). See Wyatt, 315 F.3d at 1119; Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints.").

IV. Conclusion and Order

Based on the foregoing, the Court hereby:

(1) DISMISSES Defendants WILSON DOE, San Diego Sheriff Officer; BROWN DOE, San Diego Sheriff Officer; JOHN DOES, GBDF Doctor, San Diego County Medical Division; JANE DOES, GBDF Doctor, San Diego County Medical Service Division; JOHN DOES, 5A Rover San Diego Sheriff Officer; JANE DOES, GBDF Nurses, and JOHN DOES 1-3, San Diego Sheriff Officers, for failure to amend and/or prosecute pursuant to S.D. CAL. CIVLR 15.1, 41.1, FED.R.CIV.P. 15(a), and FED.R.CIV.P. 4(m); and (2) GRANTS Defendant Gill's Motion to Dismiss Plaintiff's Amended Complaint for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6) [ECF Dkt. No. 19]. However, Plaintiff is GRANTED thirty (30) days in which to file and serve a Second Amended Complaint which addresses the deficiencies of pleading identified in this Order. Plaintiff is further cautioned that should he elect to amend, his Second Amended Complaint must be complete in itself, and that any claim not re-alleged shall be considered waived. See S.D. CAL. CIVLR 15.1; King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

If Plaintiff does not file and serve a Second Amended Complaint within that time, this case shall proceed on Plaintiff's First Amended Complaint (ECF Dkt. No. 7), but only as to the Defendants who were named, served by the U.S. Marshal, and who have Answered: Brandt O. Pile (erroneously sued as "Pile Doe"), Lizzie Womack, and Sarandi Marina (ECF Dkt. No. 22).


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