United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. On February 21, 2017,
the court determined that plaintiff's Eighth Amendment
claims of deliberate indifference to mental health needs
against defendants Kentner, Romano, Blain, Jerusik, Wallis,
Telander, Farris, and Coffin were cognizable. ECF No. 10 at
2-3. Now, these defendants have filed a motion to dismiss
pursuant to Rule 12(b)(6) (ECF No. 18) arguing that plaintiff
failed to exhaust his administrative remedies before filing
this suit. Plaintiff filed an opposition (ECF No. 19) and
defendants have declined to file a reply in the allotted
time. After review of the relevant pleadings, the court
recommends that defendants' motion to dismiss be denied.
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
complaint may be dismissed under that rule for “failure
to state a claim upon which relief may be granted.”
Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for
failure to state a claim, a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic 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. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a “probability
requirement, ” but it requires more than a sheer
possibility that a defendant has acted unlawfully.
Iqbal, 556 U.S. at 678.
purposes of dismissal under Rule 12(b)(6), the court
generally considers only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice, and construes all
well-pleaded material factual allegations in the light most
favorable to the nonmoving party. Chubb Custom Ins. Co.
v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir.
2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
under Rule 12(b)(6) may be based on either: (1) lack of a
cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory. Chubb Custom Ins. Co., 710
F.3d at 956. Dismissal also is appropriate if the complaint
alleges a fact that necessarily defeats the claim.
Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th
pleadings are held to a less-stringent standard than those
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
93 (2007) (per curiam). However, the Court need not accept as
true unreasonable inferences or conclusory legal allegations
cast in the form of factual allegations. See Ileto v.
Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing
Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981)).
Dismissal for Failure to Exhaust Administrative
Prison Litigation Reform Act of 1995 (hereafter
“PLRA”) states that “[n]o action shall be
brought with respect to prison conditions under section 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). The PLRA applies
to all suits about prison life, Porter v. Nussle,
534 U.S. 516, 532 (2002), but a prisoner is only required to
exhaust those remedies which are “available.”
See Booth v. Churner, 532 U.S. 731, 736 (2001).
“To be available, a remedy must be available as a
practical matter; it must be capable of use; at hand.”
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014)
(citing Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.
2005)) (internal quotations omitted).
such motions often depend upon consideration of documents
extrinsic to the complaint, dismissal for failure to exhaust
should generally be brought and determined by way of a motion
for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure. Id. at 1168. Under this rubric, the
defendant bears the burden of demonstrating that
administrative remedies were available and that the plaintiff
did not exhaust those remedies. Id. at 1172. If
defendant carries this burden, then plaintiff must
“come forward with evidence showing that there is
something in his particular case that made the existing and
generally available administrative remedies effectively
unavailable to him.” Id. If, however, “a
failure to exhaust is clear on the face of the complaint, a
defendant may move for dismissal under Rule 12(b)(6).”
Id. at 1166.
argue that plaintiff, by way of his second amended complaint,
has admitted that he failed to fully exhaust claims II
through VIII. ECF No. 18 at 6. They claim that the second
amended complaint indicates that plaintiff didn't even
attempt to exhaust these claims. Id. Plaintiff
disputes that he admitted to not exhausting claim VIII, but
otherwise concedes that he did not ‘individually'
exhaust claims II-VII. ECF No. 19 at 6-7. He claims, however,
that he did fully exhaust claim IX, which subsumes and
consolidates these previous claims. Id. at 7. In their
motion, defendants argue that claim IX refers only to the
acts and omission of Drs. Carr and Pickering, neither of whom
was listed as a defendant to this action. ECF No. 18 at 5.
Plaintiff contends that this interpretation of the complaint
is incorrect and that claim IX refers not only to Carr and
Pickering, but also to the allegations against the named
defendants in claims II-VIII. ECF No. 19 at 7-8.
whether plaintiff exhausted claim VIII is ultimately
irrelevant because the court dismissed this claim as
improperly joined. See ECF No. 8 at 12; ECF No. 10
at 4. Turning to claims II-VII, the court notes that the
second amended complaint does indicate that each of these
claims was not individually exhausted before this suit was
filed. ECF No. 8 at 7-11. However, in light of
plaintiff's contention that he consolidated these claims
as part a broader grievance that was exhausted, the
court concludes that dismissal of these claims would not be
appropriate on a motion to dismiss. Critically, none of the
relevant grievance record is before this court. As such, it
is impossible to determine whether: (1) the grievance
submitted in connection with claim IX was actually fully
exhausted; and (2) to the extent that grievance was
exhausted, whether it covers all, some, or none of the other
relevant claims. It is significant that failure to exhaust is
“an affirmative defense the defendant must plead and
prove.” Jones v. Bock, 549 U.S. 199, 204, 216
(2007). Where the plaintiff's complaint itself does not
clearly demonstrate a failure to exhaust available remedies,
the defendant must present relevant evidence that
“demonstrate[s] that pertinent relief remained
available, whether at unexhausted levels of the grievance
process or through awaiting the results of the relief already