United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO EXHAUST REMEDIES BE DENIED (DOC. 56.)
GARY S. AUSTIN, Magistrate Judge.
Brian Espritt ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 28, 2011. (Doc. 1.) This case now proceeds on the Second Amended Complaint, filed by Plaintiff on July 20, 2012, against defendants A. Saesee (Correctional Counselor I) and Correctional Officers (C/Os) S. Hill, S. Torres, J. Davis, M. Lopez, A. Ballesteros, and Y. Magallon (collectively, "Defendants"), for use of excessive force in violation of the Eighth Amendment. (Doc. 17.)
On May 7, 2014, Defendants filed a Rule 12(b)(6) motion to dismiss this action on the ground that Plaintiff's failure to exhaust administrative remedies is evident on the face of the operative Second Amended Complaint. (Doc. 56.) On August 18, 2014, Plaintiff filed an opposition to the motion. (Doc. 62.) On August 25, 2014, Defendants filed a reply to Plaintiff's opposition. (Doc. 63.) Defendants' motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS OF EXCESSIVE FORCE
Plaintiff is presently incarcerated at Wasco State Prison in Wasco, California. The events at issue in the Second Amended Complaint occurred at the California Substance Abuse Treatment Facility (SATF) in Corcoran, California, while Plaintiff was incarcerated there. Plaintiff's factual allegations follow.
Plaintiff alleges that on February 2, 2010, defendants C/Os Saesee, Hill, Torres, Davis, Lopez, Ballesteros, and Magallon assaulted Plaintiff. Initially, Plaintiff was struck by defendants Saesee, Hill, and Torres. Due to numerous blows to the head, Plaintiff fell to the ground and was repeatedly beaten and kicked, resulting in numerous injuries to his left ear, right cheek and eye, right shoulder, and right wrist, with cuts down to the bone. One of the responding officers, defendant Davis, applied his full body weight via his knee to the handcuffs on Plaintiff's right wrist, causing cuts down to the bone. While Plaintiff was face down on the ground in restraints, defendant Lopez grabbed Plaintiff's right foot and began slamming it up and down on the concrete in an apparent attempt to cause further injury. Defendants Ballesteros and Magallon then carried Plaintiff by the back of his shirt hem and the middle chain between his handcuffs, more than 100 yards to the program office, choking Plaintiff to unconsciousness, then dumping him into a standing "one-man" cage head first, causing further facial injuries as well as bloody left toes due to being dragged 100 yards over asphalt. (Second Amd Cmp, Doc. 17 at 5:4-5.) Plaintiff's shoes and socks were removed during the initial assault. Prior to being taken to the program office, Plaintiff overheard an unknown officer say, "Lieutenant Goss gave us a green light' (slang for thumbs up') but you guys are gonna mess it up, " in response to the length and intensity of the beating. (Id. at 5:9-12.)
As a result of the officers' actions, Plaintiff suffered a permanent split to his top left ear, a black eye, and lacerations to his right cheek and shoulder. Also, Plaintiff's right wrist was cut down to the bone. Two and a half years later, Plaintiff was still suffering from frequent headaches and loss of memory and concentration.
III. LEGAL STANDARDS
A. Rule 12(b)(6) Motion To Dismiss For Failure To State A Claim
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus , 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Barnett v. Centoni , 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen , 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. Cooper v. Pickett , 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell , 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see id. at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich , 13 F.3d 1370, 1377 (9th Cir. 1994).
B. Statutory Exhaustion Requirement
Section 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA") 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock , 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey , 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner , ...