United States District Court, S.D. California
April 15, 2014
KEN BURKE, Plaintiff,
SCOTT STEADMAN, et al., Defendants.
ORDER (1) ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
[Docket Nos. 18, 27]
DANA M. SABRAW, District Judge.
This case comes before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge to grant the motion to dismiss Plaintiff's Complaint filed by Defendants Choo, Cavender, Homer, Ridge and Steadman. Defendants moved to dismiss the Complaint on three grounds. First, they argued Plaintiff's claims for damages were barred by sovereign immunity. Second, they asserted Plaintiff's claims for injunctive relief were moot due to his transfer to a different facility. Third, Defendants contended Plaintiff failed to exhaust his administrative remedies. The Magistrate Judge agreed with Defendants' first two arguments, but disagreed with Defendants' arguments on exhaustion. Defendants filed objections to that portion of the R&R dealing with exhaustion, and Plaintiff filed a reply to those objections.
Having reviewed de novo the Magistrate Judge's R&R, this Court adopts the Magistrate Judge's recommendation on the issues of sovereign immunity and injunctive relief, and grants the motion to dismiss on those grounds.
However, the Court rejects the Magistrate Judge's recommendation on the issue of exhaustion. In a recent decision, the Ninth Circuit reversed Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), which held exhaustion "is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment.'" Albino v. Baca, ___ F.3d ___, 2014 WL 1317141, at *4 (9th Cir. Apr. 3, 2014) (quoting Wyatt, 315 F.3d at 1119). Instead, the court held exhaustion should be raised through a motion for summary judgment. Id. Defendants here followed the process set out in Wyatt, and moved for dismissal of Plaintiff's Complaint for failure to exhaust by filing an unenumerated motion under Federal Rule of Civil Procedure 12(b). The Magistrate Judge properly considered the motion under that Rule, given the state of the law at that time. In light of the Ninth Circuit's decision in Albino, however, that is no longer the proper procedure for raising the issue of exhaustion. Accordingly, this Court declines to adopt the Magistrate Judge's discussion of that issue, and denies Defendants' motion to dismiss on that ground.
In accordance with the R&R, Plaintiff's Complaint is dismissed without prejudice, and Plaintiff is granted leave to file a First Amended Complaint that cures the pleading deficiencies set out in the R&R. Indeed, in response to the R&R, Plaintiff submitted an Amended Complaint to the Court for filing. The Amended Complaint names the individual Defendants in their individual capacities as well as their official capacities, and thus appears to cure the pleading deficiency set out in the R&R. Therefore, the Court will accept the Amended Complaint for filing in accordance with this Order.
IT IS SO ORDERED.