United States District Court, E.D. California
BRADY K. ARMSTRONG, Plaintiff,
M.E. SPEARMAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND [ECF Nos. 28, 32]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Brady K. Armstrong is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Defendants Spearman and Desfosses motion to dismiss the action for failure to exhaust the administrative remedies and for failure to state a cognizable claim for relief, filed March 10, 2014.
On April 7, 2014, Plaintiff filed a motion to amend, and a copy of his first amended complaint was lodged with the Court. Plaintiff filed an opposition to Defendants' motion on April 21, 2014, and Defendants filed a reply on April 22, 2014.
This action is proceeding on Plaintiff's original complaint filed on February 19, 2013, against Defendants Spearman and Desfosses for use of excessive force in violation of the Eighth Amendment.
A. Unenumerated 12(b) Motion for Failure to Exhaust Administrative Remedies
On March 10, 2014, Defendants filed an unenumerated Rule 12(b) motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative remedies. 42 U.S.C. §1997e(a); Fed.R.Civ.P. 12(b).
On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the proper procedural device for failing the issue of administrative exhaustion. Albino v. Baca, No. 10-55702 , 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Albino , 2014 WL 1317141, at *4 (quotation marks omitted). An unenumerated Rule 12(b) motion is no longer the proper procedural devise for raising the issue of exhaustion. Id . Accordingly, the Court will deny Defendants' unenumerated Rule 12(b) motion, without prejudice, on procedural grounds, and grant them thirty days from the date of service of this order within which to file a further responsive pleading or motion.
B. 12(b)(6) Motion Failure to State Cognizable Claim for Relief
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown , 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr. , 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force , 646 F.3d at 1242; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall , 629 F.3d at 998; Sanders , 504 F.3d at 910; Morales v. City of Los Angeles , 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter 668 F.3d 1108 , 1112 (9th Cir. 2012); Silva v. Di Vittorio , 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010).
1. Statutory Screening Requirement
The Court is required to screen complaint brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity, 28 U.S.C. § 1915A(a), and it must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, and found that Plaintiff stated a cognizable claim under the Eighth Amendment against both Defendants Spearman and Desfosses. (ECF No. 17.) Because the screening standard does not differ from the standard governing Rule 12(b)(6) motions, Watison v. Carter , 668 F.3d 1108, 1112 (9th Cir. 2012), the Court generally views motions to dismiss for failure to state a claim with disfavor. Unless a motion sets forth new or different grounds not previously considered by the Court, it is disinclined to rethink what it has already thought. Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-00392-LJO-JLT , 2011 WL 902120, at *6 (E.D. Cal. Mar. 15, 2011) (citing United States v. Rezzonico , 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) (quotation marks omitted). This case presents no exception and denies both sides the ability to have their rights adjudicated earlier. As a result, two judicial officers, both the undersigned and U.S. District Judge Lawrence O'Neill through a findings and recommendation review, must review issues which were addressed in the screening order. The Defendants are advised not to file a motion for the sake of filing a motion, as the resources of this court are limited. Because exhaustion was part of this motion and appropriate to bring at the time the motion was filed, an order to show cause will not be issued.
2. Defendants Spearman and Desfosses
Defendants argue that Plaintiff fails to state a cognizable claim against Defendant Spearman for failure to protect and against Defendant ...