United States District Court, S.D. California
REPORT AND RECOMMENDATION ORDER DENYING
DEFENDANT'S MOTION TO DISMISS, [ECF No. 9]
Barbara L. Major United States Magistrate Judge
Report and Recommendation is submitted to United States Chief
Judge Larry Alan Burns pursuant to 28 U.S.C. § 636(b)
and Civil Local Rule 72.1(c) of the United States District
Court for the Southern District of California. For the
following reasons, the Court RECOMMENDS that
Defendant's motion to dismiss for failure to exhaust
administrative remedies be DENIED.
Antonio Lasale Hannah is a state prisoner proceeding pro
se and in forma pauperis, who currently resides
at San Diego Central Jail (“SDCJ”). ECF No. 1 at
1. Plaintiff initiated this action on April 29, 2019 when he
filed a complaint under the Civil Rights Act, 42 U.S.C.
§ 1983, alleging Eighth Amendment
violations. See id. at 3, 14. On June 18,
2019, Chief Judge Burns dismissed Plaintiff's claims
against Defendants South Bay Detention Facility and the
County of San Diego for failing to state a claim upon which
relief may be granted. See ECF No. 5 at 5-7.
Additionally, Chief Judge Burns dismissed Plaintiff's
claims against Defendant Sheriff Gore for failing “to
show how, or to what extent, Sheriff Gore may be held
individually liable, ” and holding that vicarious
liability does not apply to § 1983 suits. Id.
at 7. Therefore, Plaintiff's only remaining claim before
the Court is against Defendant Corporal Ramirez alleging
unreasonable use of force in violation of Plaintiff's
Fourteenth Amendment. Id. at 8.
September 18, 2019, Defendant Ramirez filed the instant
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to exhaust all administrative remedies.
ECF No. 9-1 at 1-2. On September 20, 2019, this Court set a
briefing schedule governing Defendant Ramirez's motion.
ECF No. 10. On October 7, 2019, Plaintiff filed on opposition
to Defendant Ramirez's motion. ECF No. 11. On November
15, 2019, Defendant filed a reply to Plaintiff's
opposition. ECF No. 14.
argues Plaintiff's claims are barred as a matter of law
because Plaintiff failed to exhaust his administrative
remedies. ECF No. 9-1 at 3. Specifically, Defendant states
that “nowhere in the Complaint does the [p]laintiff
allege” exhaustion and, on the form complaint that
explicitly asked Plaintiff as much, Plaintiff did not
respond. Id. at 5. Additionally, Defendant argues
that, “[t]o exhaust administrative remedies, a
grievance must be factually sufficient to” put the
prison on notice “as to the nature of the wrong for
which Plaintiff now seeks redress.” ECF No.14 at 2-3.
Defendant claims that Plaintiff fails to put jail officials
on notice of Defendant's alleged assault in the
grievances attached to Plaintiff's Complaint and,
therefore, “it cannot reasonably be found that
[Plaintiff] exhausted his administrative remedies.”
Id. at 3. Finally, Defendant argues that
Plaintiff's attached grievances fail “to indicate
that no further grievances or administrative remedies
remained available to the plaintiff when he filed his
lawsuit.” Id. at In his opposition, Plaintiff
contends that he “clearly answered the 1983 Complaint
Form on pg(6), ” thereby showing that he exhausted
all available administrative remedies. ECF No. 11 at 3. In
support of his claim, Plaintiff states that he
“attached [his] administrative remedy, a Sheriff
Department [G]rievance Form.” Id. Plaintiff
argues that the “Sheriff Dept. Jail grievance . . . was
deemed not a grievance” thereby rendering his
“administrative remedy unavailable.” Id.
Plaintiff notes that “jail officials routinely mark
grievance ‘Not a grievance' so that they don't
have to process the grievance and perform an investigation,
” which “ultimately renders the administrative
remedy unavailable.” Id.
reply, Defendant reiterates that Plaintiff did not fully
complete the complaint, did not state in the complaint that
he had exhausted all administrative remedies, and did not
attach documents to either the complaint or his opposition
that proved he had exhausted his administrative remedies. ECF
No. 14 at 1-4. Defendant argues that Plaintiff is required to
prove in his complaint that he exhausted all administrative
remedies and Plaintiff did not do so. Id. Defendant
does not address Plaintiff's argument that the
administrative remedy process is unavailable to him.
Prison Litigation Reform Act (“PLRA”) requires
that prisoners exhaust “such administrative remedies as
are available before commencing a suit challenging prison
conditions.” 42 U.S.C. § 1997(e)(a). In Albino
v. Baca, the Ninth Circuit held that in order for the
Court to determine whether a plaintiff has exhausted his
administrative remedies, the issue of failure to exhaust must
be raised in a motion for summary judgment as opposed to an
unenumerated Rule 12(b) motion. 747 F.3d 1162, 1170 (9th Cir.
2014). The Court explained that failure to exhaust
administrative remedies is an affirmative defense, therefore,
making it inappropriate to raise in a motion to dismiss.
See id. at 1169.
the Albino Court set forth the following exception
in which a defendant may allege failure to exhaust in a Rule
In a few cases, a prisoner's failure to exhaust may be
clear from the face of the complaint. However, such cases
will be rare because plaintiff is not required to say
anything about exhaustion in his complaint. As the Court
wrote in Jones, “failure to exhaust is an
affirmative defense under the PLRA, and inmates are not
required to specifically plead or demonstrate exhaustion in
their complaints.” But only in those rare cases
where a failure to exhaust is clear from the face of the
complaint, a defendant may successfully move to dismiss
under Rule 12(b)(6).
Albino, 747 F.3d at 1169 (quoting Jones v.
Bock, 549 U.S. 199, 215-16 (2007)) (emphasis added). As
a result, a motion to dismiss is proper only where the
plaintiff's complaint contains facts establishing his
failure to exhaust administrative remedies, resulting in no
disputed facts on the issue of exhaustion. See
Albino, 747 F.3d at 1169.
Plaintiff's complaint does not address exhaustion. ECF
No. 1. Plaintiff did not complete Section D.2, which requests
information on exhaustion of administrative remedies.
Id. at 15. The handwritten factual statement
complains that the prison did not conduct a use of force
investigation and states that Plaintiff wrote grievances, but
does not describe what efforts Plaintiff made to exhaust his
administrative remedies. Id. at 3-4, 9 & 14. The
attached grievances indicate that Plaintiff complained about
several issues [id. at 7-8, 10-11] and that one
grievance related to Plaintiff's claim that the prison
was covering up his assault was determined by a prison
official to not constitute a grievance [id. at 7].
The staff member notes that he/she “will look up case
#” but does not check the box indicating what type of
process Plaintiff's submission does constitute nor
provide any follow up information. Id. at 7. In
addition, Plaintiff asserts in his opposition that he did
exhaust his administrative remedies and that he has
additional documents supporting his claim. ECF No. 11 at 4.
As such, this case is not one of those rare cases in which
the failure to exhaust is clear from the face of the
complaint and the Court RECOMMENDS that
Defendant's motion to dismiss be DENIED.
If Defendant files a summary judgment motion alleging failure
to exhaust administrative remedies, Defendant must address
Plaintiff's argument that the administrative remedies
were not available to him. See Brown v. Valoff, 422
F.3d 926, 936-37 (9th Cir. 2005) (stating that “a
defendant must demonstrate that pertinent relief remained
available, whether at unexhausted levels of the grievance
process or through awaiting the results of the relief already
granted as a result of that process”).
end of his opposition, Plaintiff requests leave to file an
amended complaint. ECF No. 11 at 4. If Plaintiff wants to
file an amended complaint, he must file a motion requesting
permission to do so and must attach the proposed amended
complaint to the ...