Muhammad v. Arizona Department of Corrections et al

Filing 77

ORDER, the reference to the Magistrate Judge is withdrawn as to Defendant Ams' Motion for Judgment on the Pleadings 67 , construed as a Rule 12(b)(6) Motion to Dismiss, and the Motion is denied. Signed by Senior Judge Stephen M McNamee on 7/31/14.(REW)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Riki Rashaad Muhammad, 10 Plaintiff, 11 12 13 No. CV 11-1890-PHX-SMM (LOA) vs. ORDER Arizona Department of Corrections, et al., 14 Defendants. 15 16 Before the Court is Defendant Barbara Ams’ Motion for Judgment on the 17 Pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Doc. 67); Plaintiff Riki 18 Rashaad Muhammad opposes (Doc. 72). 19 20 The Court will deny Ams’ motion. I. Background 21 Muhammad initiated this civil rights action under 42 U.S.C. § 1983 in September 22 2011 (Doc. 1). In July 2012, he filed his Second Amended Complaint, in which he set 23 forth various constitutional claims against Arizona Department of Corrections (ADC) 24 officials (Doc. 25). 25 alleged that Ams knew of and disregarded an excessive risk to his safety thereby 26 exposing him to a substantial risk of harm in violation of the Eighth Amendment (id. at 27 29-30). 28 In Count VII of his Second Amended Complaint, Muhammad According to Muhammad, Ams provided another inmate a page from 1 Muhammad’s pre-sentence report that contained confidential information about his 2 involvement in the death of a child (id.). 3 Ams now moves for judgment on the pleadings under Rule 12(c) on the ground 4 that Muhammad failed to exhaust administrative remedies as required under the Prison 5 Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. 67). 6 II. Governing Standard 7 Prisoners are required to exhaust “available” administrative remedies before 8 bringing any action under § 1983 or other federal law. See 42 U.S.C. § 1997e(a); Vaden 9 v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934- 10 35 (9th Cir. 2005). Exhaustion of administrative remedies is an affirmative defense that, 11 in most cases, must be raised by summary judgment. Jones v. Bock, 549 U.S. 199, 204, 12 216 (2007); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014), overruling Wyatt v. 13 Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). The Ninth Circuit has held that “in 14 those rare cases where a failure to exhaust is clear from the face of the complaint, a 15 defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a 16 claim.” Albino, 747 F.3d at 1169. 17 Thus, Rule 12(b)(6), not Rule 12(c), is the proper vehicle for Ams’ motion. But 18 the Court evaluates a Rule 12(c) motion for judgment on the pleadings under the same 19 standard as a Rule 12(b)(6) motion to dismiss. Dworkin v. Hustler Magazine Inc., 867 20 F.2d 1188, 1192 (9th Cir. 1989). 21 To survive a motion to dismiss, a complaint “must contain sufficient factual 22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 23 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 24 570 (2007)). All factual allegations set forth in the complaint are taken as true and 25 construed in the light most favorable to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 26 679 (9th Cir. 2001) (citation omitted). A complaint may be dismissed for failure to state 27 a claim only “if it appears beyond doubt that the plaintiff can prove no set of facts in 28 support of his claim which would entitle him to relief.” Silvia v. Di Vittorio, 658 F.3d -2- 1 1090, 1101 (9th Cir. 2011). Where the plaintiff is a pro se prisoner, the court must 2 “construe the pleadings liberally and [] afford the petitioner the benefit of any doubt.” 3 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 4 III. 5 Discussion In her motion, Ams erroneously states that Mohammad’s First Amended 6 Complaint is the operative complaint (Doc. 67 at 1, citing Doc. 9). 7 Muhammad’s statement in his First Amended Complaint that “[a]dministrative remedies 8 not sought due to fear of retaliation” (id. at 2, citing Doc. 9 at 18). She also cites 9 statements within Muhammad’s original Complaint explaining why he feared retaliation 10 for using the grievance system (id., citing Doc. 1 at 11). Relying on these statements, 11 Ams argues that Muhammad’s claimed fear of retaliation is “meritless on its face” 12 because the ADC provides a grievance procedure and that, since the PLRA mandates 13 exhaustion of administrative remedies, Muhammad’s concession that he did not exhaust 14 warrants dismissal of the claim against her (id. at 3-4). Ams cites 15 The operative complaint is the Second Amended Complaint (Doc. 25). 16 original Complaint and First Amended Complaint are treated as nonexistent, and the 17 Court will not consider allegations set forth in those pleadings. See Ferdik v. Bonzelet, 18 963 F.2d 1258, 1262 (9th Cir. 1992). Because Ams does not cite to the proper pleading, 19 her motions fails. The 20 Nonetheless, because Muhammad states in his Second Amended Complaint that 21 he did not seek administrative remedies for his claim against Ams due to fear of 22 retaliation, the Court will address Ams’ argument (Doc. 25 at 30). 23 As noted, the PLRA exhaustion provision requires proper exhaustion of only 24 “available” administrative remedies. Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 25 2010). Exhaustion is not required when circumstances render administrative remedies 26 otherwise “effectively unavailable.” Id. (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 27 (9th Cir. 2010). The Ninth Circuit has cited favorably to cases holding that threats or 28 retaliation can render administrative remedies effectively unavailable and excuse the -3- 1 PLRA exhaustion requirement. See Sapp, 623 F.3d at 823 (citing Turner v. Burnside, 2 541 F.3d 1077, 1085 (11th Cir. 2008), Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007), 3 and Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006)); see also Nunez, 591 F.3d at 4 1224. 5 Because fear of retaliation has been recognized as a ground for finding 6 administrative remedies unavailable, Muhammad’s claim that he feared retaliation is not 7 meritless on its face. Further, when construing Muhammad’s allegation in his favor and 8 affording him the benefit of any doubt, the fear of retaliation he experienced could have 9 deterred a reasonable inmate from lodging a grievance; in which case, it might constitute 10 an exception to the exhaustion requirement. See Walker v. Cal. Dep’t of Corr., No. 2:09- 11 cv-0569 WBS KJN, 2014 WL 268525, at *8 (E.D.Cal. Jan. 22, 2014) (finding that threats 12 of retaliation chilled the plaintiff’s ability to pursue a grievance and rendered 13 administrative remedies unavailable; “the perceived threat by [defendant prison officials] 14 was ‘one that would deter a reasonable inmate of ordinary firmness and fortitude from 15 lodging a [new] grievance . . . .’”) (citing Turner, 541 F.3d at 1085). 16 Under the Rule 12(b)(6) standard, the Court does not consider the additional 17 factual allegations in Mohammad’s response, nor does it consider the unsupported 18 assertions in Ams’ reply. See Van Buskirk v. Cable News Network, 284 F.3d 977, 980 19 (9th Cir. 2002) (generally, a court may look only at the face of the complaint when 20 deciding a motion to dismiss); see also United States v. Ritchie, 342 F.3d 903, 907 (9th 21 Cir. 2003) (on Rule 12(b)(6) motion, court may consider documents attached to 22 pleadings, documents incorporated by reference into a complaint, or matters of judicial 23 notice without converting the motion into one for summary judgment). 24 considering only the statements in Muhammad’s Second Amended Complaint, the Court 25 cannot conclude that he failed to exhaust because it is possible that administrative 26 remedies were rendered unavailable. Consequently, this is not one of “those rare cases” 27 where the failure to exhaust is clear from the face of the complaint, and Ams’ motion will 28 be denied. Albino, 747 F.3d at 1169. -4- When 1 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 2 Defendant Ams’ Motion for Judgment on the Pleadings (Doc. 67), construed as a Rule 3 12(b)(6) Motion to Dismiss, and the Motion is denied. 4 DATED this 31st day of July, 2014. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?