The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION DENYING GEO'S MOTION TO DISMISS (Doc.6) ORDER DISREGARDING MTC'S MOTION TO DISMISS (Doc. 15)
Plaintiff is a federal prisoner, housed at the Taft Correctional Institution. He alleges that while housed at Taft, he contracted Valley Fever as a result of the negligence of the operators of the prison, The GEO Group and Management and Training Corporation.
Before the Court are the motions to dismiss of GEO and MTC.*fn1 (Docs. 6,15) Defendants contend Plaintiff failed to exhaust his administrative remedies provided by TCI. Also, GEO asserts it is entitled to judgment because it did not operate the prison at the time Plaintiff contracted the disease. For reasons set forth below, the Court recommends the motion be DENIED.
I. GEO's motion to dismiss should be denied.
A. An unenmerated Fed. R. Civ. P. 12(b) motion is the proper method for challenging whether an inmate has exhausted his administrative remedies A motion raising a prisoner's failure to exhaust administrative remedies is properly asserted by way of an unenumerated motion under Fed.R.Civ.P 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 6 (9th Cir.2003); Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th 7 Cir.1998) (per curium). In determining whether a case should be dismissed for failure to exhaust the 8 administrative remedies, "the court may look beyond the pleadings and decide disputed issues of fact" 9 in a procedure that is "closely analogous to summary judgment." Id. at 111920. When the court concludes the prisoner has not exhausted all of his available administrative remedies, "the proper remedy is dismissal without prejudice." Id.
B. There is no statutory authority requiring exhaustion of TCI's grievance procedure before a state law claim may be brought
"[T]he exhaustion doctrine "provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 837 (9th Cir. 2001) quoting McKart v. United States, 395 U.S. 185, 193 (1969). The Ninth Circuit has recognized the value in requiring exhaustion of administrative remedies because it "(1) avoid[s] premature interruption of the administrative process; (2) let[s] the agency develop the necessary factual background for decisions; (3) giv[es] the agency the first chance to exercise its discretion and apply its expertise; and (4) avoid[s] judicial interference with an agency until it has completed its action. Stuhlbarg at 193--94.
Based upon established legal principles requiring exhaustion of administrative remedies, GEO asserts Plaintiff was required to exhaust the grievance procedure provided at TCI as a prerequisite to filing suit. Notably absent from GEO's motion is any showing that GEO is an "administrative agency" such that it can impose an administrative remedy as prerequisite to filing suit. Even assuming that GEO qualify as an administrative agency-which the Court does not accept--there is no statute which requires exhaustion before the inmate may initiate litigation.
The Prison Litigation Reform Act, ordinarily, requires an inmate to exhaust grievance procedures in place at his place of incarceration before he may bring suit. However, by its express 2 terms, the PLRA applies only to claims brought under 42 U.S.C. § 1983 or under federal law.*fn2 42 U.S.C. § 1997e(a). Thus, though the PLRA permits GEO to maintain an administrative review 4 procedure to address prospective PLRA claims, it does not provide a similar avenue to require 5 exhaustion of grievances that result in a state law cause of action. 6
GEO relies upon the BOP's grievance procedure which governs inmates'
housed in federal
facilities and argues GEO has a similar process. Notably, the
purpose of the BOP's Administrative 8
Remedy Program set forth in 28 CFR § 542.10, "is to allow an inmate to
seek formal review of an 9 issue relating to any aspect of his/her own
confinement." Despite this broadly-worded goal, many claims are
excluded from the Program.
There are statutorily-mandated procedures in place for tort claims (28 CFR part 543, subpart C), Inmate Accident Compensation claims (28 CFR part 301), and Freedom of Information Act or Privacy Act requests (28 CFR part 513, subpart D). If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the Bureau will refer the inmate to the appropriate statutorily-mandated procedures.
28 C.F.R. § 542.10, emphasis added. Specifically excluded from the Program are tort claims which must be addressed according to the Federal Tort Claims Act (28 CFR § 543 subpart C). Thus, if an inmate asserts a state law claim, such as negligence, cannot exhaust his administrative remedy by pursuing the relief set forth in 28 CFR §§ 542.10, et seq.
Though asserting that GEO's process is "nearly the same as the Bureau of Prisons,"*fn3 (Doc.6-1 at 2), Defendant fails to note that its own program, like the BOP's Administrative Remedy Program, excludes tort claims. TCI's program specifically acknowledges the requirement of the BOP's program that tort claims be pursued according to the FTCA. Despite this, TCI's program does not impose a new requirement that tort claims must be exhausted even though the BOP's program does not. (Doc. 26 at 15) Indeed, a portion of the 2009 Inmate Handbook provided by the Defendants seems to 2 indicate that TCI provides an avenue for addressing claims caused by employee negligence which 3 "results in personal injury, property loss or damage to an inmate, it can be the basis of a Request for 4 Administrative Remedy"*fn4 and that this, seemingly, is a separate process from the multi-part procedure 5 which governs § 1983 claims. Id. at 7. 6
Thus, the Court finds that GEO has failed to demonstrate it is an administrative agency such 7 that it can impose an administrative process outside of the PLRA which is a prerequisite to filing suit 8 or that there is statutory authority for this proposition. Therefore, the Court recommends the motion 9 to dismiss be DENIED. II. GEO's motion for summary judgment should be denied at this time to allow discovery GEO asserts that it may not be held liable because it did not operate TCI at the time Plaintiff contracted Valley Fever. (Doc. 6 at 8-10) In support for this position, GEO provides the declaration of Dale Patrick, an employee of MTC who has worked at TCI since 1997. (Doc. 6-1 at 1) Patrick asserts that MTC took over ...