Donald Stratton v. Julie Buck, et al

Filing

FILED OPINION (BARRY G. SILVERMAN, MARY H. MURGUIA and LESLIE E. KOBAYASHI) REVERSED AND REMANDED. Judge: LEK Authoring. FILED AND ENTERED JUDGMENT. [8329136]

Case: 10-35656

09/19/2012

ID: 8329136

DktEntry: 74-1

Page: 1 of 10

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD LYLE STRATTON,
Plaintiff-Appellant,
v.
JULIE BUCK, in her individual
capacity; DALE BROWN, in his
individual capacity; JOHN DOE, in
his individual capacity; JANE DOE,
in her individual capacity,
Defendants-Appellees.




No. 10-35656
D.C. No.
3:09-cv-05571RJB-KLS
OPINION



Appeal from the United States District Court
for the Western District of Washington at Tacoma
Robert J. Bryan, District Judge, Presiding
Argued and Submitted
June 8, 2012—Seattle, Washington
Filed September 19, 2012
Before: Barry G. Silverman and Mary H. Murguia,
Circuit Judges, and Leslie E. Kobayashi, District Judge.*
Opinion by Judge Kobayashi

*The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.

11477

Case: 10-35656

09/19/2012

ID: 8329136

STRATTON v. BUCK

DktEntry: 74-1

Page: 2 of 10

11479

COUNSEL
Shane P. Coleman, Holland & Hart LLP, Billings, Montana,
for the plaintiff-appellant.
Michele C. Atkins (argued) and Christopher Holmes Anderson, Fain Anderson VanDerhoef, PLLC, Seattle, Washington,
for defendant-appellee Julie Buck.
Candie M. Dibble, Attorney General’s Office, Olympia,
Washington, for defendant-appellee Dale Brown.

Case: 10-35656

11480

09/19/2012

ID: 8329136

DktEntry: 74-1

Page: 3 of 10

STRATTON v. BUCK

OPINION
KOBAYASHI, District Judge:
Plaintiff-Appellant Donald Lyle Stratton (“Stratton”)
appeals from the judgment in favor of Defendant-Appellee
Dale Brown (“Brown”) entered pursuant to the order granting
Brown’s motion to dismiss for failure to exhaust administrative remedies.1 Stratton argues that the district court erred in
considering matters outside of the pleadings and in dismissing
his case because the district court failed to provide him with
notice of the requirements for a response to a motion to dismiss for failure to exhaust administrative remedies in which
the district court considers documents beyond the pleadings.
Stratton also argues that the district court erred in concluding
that he failed to exhaust his administrative remedies.
We hold that Stratton was entitled to notice — similar to
the notice for motions for summary judgment described in
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) —
explaining the requirements for a response to Brown’s motion
to dismiss for failure to exhaust administrative remedies and
the consequences if the district court granted the motion. We
further hold that Stratton had a substantial right to such notice
and that the district court’s failure to provide such notice was
not harmless.
We therefore reverse the dismissal of Stratton’s claims
against Brown and remand this case to the district court for
further proceedings.
1

Stratton also appeals from the judgment in favor of DefendantAppellee Julie Buck, M.D., entered pursuant to the order granting Dr.
Buck’s motion for summary judgment. That portion of Stratton’s appeal
is addressed in a separate Memorandum filed concurrently with the instant
Opinion.

Case: 10-35656

09/19/2012

ID: 8329136

DktEntry: 74-1

STRATTON v. BUCK

Page: 4 of 10

11481

FACTS AND PROCEDURAL HISTORY
On August 17, 2008, Stratton was assaulted by a fellow
inmate at the Stafford Creek Corrections Center (“SCCC”).
While Stratton was in a protective custody holding cell after
the assault, Brown, a registered nurse at SCCC, saw him lying
on the floor. Brown asked Stratton, “what hurts, what happened, are you in pain, why were you assaulted . . . ?”
Defendant-Appellee Julie Buck, M.D. (“Dr. Buck”) examined
Stratton after the fire department transported him to the Emergency Department at the Grays Harbor Community Hospital.
Stratton’s complaint, filed November 16, 2009, alleged that
Dr. Buck’s and Brown’s failure to provide pain medication to
him violated his Eighth Amendment right to be free from
cruel and unusual punishment and his Fourteenth Amendment
right to due process. Throughout the district court proceedings, Stratton represented himself pro se.
Brown filed a Motion to Dismiss on March 31, 2010. On
July 1, 2010, the magistrate judge filed her Report and Recommendation to grant Brown’s Motion to Dismiss. The magistrate judge concluded that Stratton failed to exhaust his
administrative remedies and that it was unnecessary to reach
Brown’s other arguments in favor of dismissal. On July 26,
2010, the district judge issued his order adopting the Report
and Recommendation and dismissing Stratton’s claims
against Brown without prejudice. Also on July 26, 2010,
Stratton filed objections to the Report and Recommendation.
On July 28, 2010, the district judge issued an order affirming
his July 26, 2010 order, despite Stratton’s objections. On
August 18, 2010, Stratton filed a notice of appeal relating to
the July 26, 2010 order granting Brown’s Motion to Dismiss.
JURISDICTION
The district court apparently did not enter a separate judgment, as required by Fed. R. Civ. P. 58(a)(1). Where there is

Case: 10-35656

11482

09/19/2012

ID: 8329136

DktEntry: 74-1

Page: 5 of 10

STRATTON v. BUCK

no separate judgment, pursuant to Fed. R. App. P.
4(a)(7)(A)(ii), we deem the entry of judgment to be 150 days
after the entry of an appealable final order. StephanieCardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d
701, 703-04 (9th Cir. 2007). Although a notice of appeal filed
before the entry of judgment is premature, Fed. R. Civ. P.
4(a)(2) treats such notices as filed on the date of the entry of
judgment. Id. at 704. Stratton’s notice of appeal is therefore
timely, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
STANDARD OF REVIEW
We review a district court’s dismissal of a prisoner’s complaint for failure to exhaust his administrative remedies de
novo. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010).
When the district court considers a motion to dismiss, it may
“ ‘look beyond the pleadings and decide disputed issues of
fact[,]’ ” and we review the district court’s factual findings for
clear error. Id. (quoting Wyatt v. Terhune, 315 F.3d 1108,
1119-20 (9th Cir. 2003)).
ANALYSIS
I.

Notice to Pro Se Prisoner Litigants

[1] This court has held that a pro se prisoner litigant is
entitled to “fair notice of the requirements and consequences
of the summary judgment rule.” Solis v. Cnty. of Los Angeles,
514 F.3d 946, 952 (9th Cir. 2008) (citing Rand, 154 F.3d at
959). Either the district court or the moving party may provide the notice, which “ ‘must be phrased in ordinary, understandable language’ and . . . must inform the prisoner both of
his ‘right to file counter-affidavits or other responsive evidentiary materials’ and, ‘most importantly, . . . of the effect of
losing on summary judgment.’ ” Id. (some alterations in Solis)
(quoting Rand, 154 F.3d at 960). Appendix “A” to Rand is a
model notice to pro se prisoner litigants. 154 F.3d at 962-63.

Case: 10-35656

09/19/2012

ID: 8329136

STRATTON v. BUCK

DktEntry: 74-1

Page: 6 of 10

11483

[2] This court has also recognized that an unenumerated
Fed. R. Civ. P. 12(b) motion to dismiss based on the failure
to exhaust administrative remedies2 is closely analogous to a
motion for summary judgment and, if the district court looks
beyond the pleadings in deciding the motion, the district court
“must assure that [the pro se prisoner plaintiff] has fair notice
of his opportunity to develop a record.” Wyatt, 315 F.3d at
1120 n.14. This court noted that the reasons for requiring such
notice are the same as the reasons for requiring a Rand notice
for motions for summary judgment. Id. (citing Section I of
Wyatt, which discussed Rand). Wyatt noted that the reasons
for the Rand notice include “ ‘the complexity of the summary
judgment rule’ ” and “ ‘the lack of legal sophistication of the
pro se prisoner[.]’ ” Id. at 1114 (quoting Rand, 154 F.3d at
960). A motion to dismiss for failure to exhaust administrative
remedies is also complex, and a pro se prisoner lacking legal
sophistication is unlikely to understand how to respond to a
motion to dismiss for failure to exhaust administrative remedies.
[3] We therefore hold that, when a district court will consider materials beyond the pleadings in ruling upon a defendant’s motion to dismiss for failure to exhaust administrative
remedies, the pro se prisoner plaintiff must receive a notice,
similar to the notice described in Rand.3 The notice must
explain that: the motion to dismiss for failure to exhaust
administrative remedies is similar to a motion for a summary
judgment in that the district court will consider materials
beyond the pleadings; the plaintiff has a “right to file counteraffidavits or other responsive evidentiary materials”; and the
2

The exhaustion provision in the Prison Litigation Reform Act provides:
“No action shall be brought with respect to prison conditions under section
1983 of this title, 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).
3
The model notice appended to Rand is sufficient if the district court,
or the moving defendant, tailors the model notice to address a Rule 12(b)
motion to dismiss for failure to exhaust administrative remedies.

Case: 10-35656

09/19/2012

11484

ID: 8329136

DktEntry: 74-1

Page: 7 of 10

STRATTON v. BUCK

effect of losing the motion. See Rand, 154 F.3d at 960. The
notice “must be phrased in ordinary, understandable language
calculated to apprise an unsophisticated prisoner of his or her
rights and obligations” under Rule 12. See id. We also note
that a Rand notice or a Wyatt notice “must be provided to pro
se prisoner plaintiffs at the time the defendants’ motions are
filed.” Woods v. Carey, ___ F.3d ___, Nos. 09-15548, 0916113, 2012 WL 2626912, at *1 (9th Cir. July 6, 2012).
II.

Adequacy of the Notice to Stratton

We now turn to the notice requirement in the instant case.
In support of the portion of his Motion to Dismiss arguing
that Stratton failed to exhaust his administrative remedies,
Brown attached a declaration from the Grievance Program
Manager in the Office of Correctional Operations, Washington State Department of Corrections, Stratton’s Department of
Corrections grievances, and correspondence related to the
grievances. The magistrate judge considered these documents
in recommending that the district judge grant Brown’s Motion
to Dismiss. Thus, Stratton was entitled to notice explaining
the process associated with a motion to dismiss for failure to
exhaust administrative remedies.
The magistrate judge’s Pretrial Scheduling Order, filed January 13, 2010, contained a section entitled “MOTIONS”,
which quoted the model notice appended to Rand. Insofar as
the notice quoted the Rand model notice, it did not mention
Rule 12(b), nor did it explain that a motion to dismiss for failure to exhaust administrative remedies is similar to a motion
for summary judgment in that the district court will consider
documents beyond the pleadings. Thus, Stratton did not have
fair notice of his opportunity to develop a record to oppose
Brown’s Motion to Dismiss to the extent that the motion
alleged a failure to exhaust administrative remedies, nor did
Stratton have fair notice of the effect of losing the motion.
Further, insofar as the district court failed to give Stratton fair
notice of his opportunity to develop a record on the exhaus-

Case: 10-35656

09/19/2012

ID: 8329136

STRATTON v. BUCK

DktEntry: 74-1

Page: 8 of 10

11485

tion issue, the district court erred in considering documents
beyond the pleadings.
[4] A pro se prisoner plaintiff has a substantial right to
notice explaining the process associated with a motion to dismiss for failure to exhaust administrative remedies where the
district court will consider materials beyond the pleadings. In
most cases, the failure to provide the requisite notice will necessarily affect the pro se prisoner plaintiff ’s substantial rights.
See Rand, 154 F.3d at 962. The failure to provide the required
notice will be harmless only in an unusual case, such as where
judicial notice of district court records establishes that the pro
se prisoner plaintiff recently received a proper notice in a previous action or where the pro se prisoner plaintiff ’s response
to the motion to dismiss for failure to exhaust administrative
remedies establishes that the plaintiff has a complete understanding of the notice described in this opinion. See id. at 96162. We also recognize that the failure to provide the pro se
prisoner plaintiff with the requisite notice will also be harmless if the plaintiff cannot prove any set of facts that would
entitle him or her to relief. See id. at 962 n.9. In the exceptional case in which the failure to provide the requisite notice
is subject to harmless error review, that review “must be
undertaken on an objective basis.” See id. at 962 (footnote
omitted).
[5] In the instant case, there is no indication in the record
on appeal that Stratton received any notice regarding motions
to dismiss for failure to exhaust administrative remedies,
either in this case or in another recent case before the district
court. As previously noted, Brown’s Motion to Dismiss relied
upon a declaration and supporting documents attached to the
motion. Stratton did not attach any affidavits, declarations, or
supporting documents to his response to Brown’s Motion to
Dismiss. Stratton’s response argued that he exhausted all
administrative remedies because he “made a good faith effort
to file the grievance properly nad (sic) appealed it several

Case: 10-35656

11486

09/19/2012

ID: 8329136

DktEntry: 74-1

Page: 9 of 10

STRATTON v. BUCK

times[.]”4 All of the grievances, letters, and responses that
Stratton referred to in his exhaustion argument were attached
to Brown’s Motion to Dismiss. With regard to Stratton’s September 2, 2008 grievance, however, Stratton cited “the
reverse side of the inmate grievance forms” and “DOC POLICY 560.100 (Offender Grievance Program)” in support of
his argument that he did not have notice that the Department
of Corrections would determine that his grievance was not
grieveable if he cited sections of the Revised Code of Washington in his grievance form. The version of Stratton’s September 2, 2008 grievance attached to Brown’s Motion to
Dismiss does not include the reverse side of the grievance
form. If Stratton had received proper notice explaining the
process associated with a motion to dismiss for failure to
exhaust administrative remedies, including his right to file
counter-affidavits or other responsive evidentiary materials,
Stratton could have submitted documents such as a copy of
the September 2, 2008 grievance with the reverse side of the
form and the relevant policies governing the grievance program. Thus, after an objective review of the record in this
case, we cannot conclude that there is no set of facts that
Stratton could prove which would entitle him to relief. We
therefore cannot conclude that the failure to provide Stratton
with notice explaining the process associated with a motion to
dismiss for failure to exhaust administrative remedies, in
which the district court will consider documents beyond the
pleadings, was harmless. Accordingly, we reverse the judgment in favor of Brown entered pursuant to the order granting
Brown’s Motion to Dismiss and remand the case to the district court. We express no opinion on the merits of Stratton’s
argument that he exhausted all of his available remedies, and
4

In the instant appeal, Stratton expands upon this argument by asserting
that he exhausted all of the administrative remedies which were available.
He contends that either the SCCC personnel did not have the authority to
act on his grievances or there were no available administrative remedies
for his grievances due to the improper screening of his grievances. Thus,
he contends that exceptions to the exhaustion requirement applied, and he
had no further obligation to exhaust administrative remedies.

Case: 10-35656

09/19/2012

ID: 8329136

STRATTON v. BUCK

DktEntry: 74-1

Page: 10 of 10

11487

we leave that matter for the district court to decide in the first
instance.
REVERSED AND REMANDED.