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ORDER, the reference to the Magistrate Judge is withdrawn as to Defendant Ams' Motion for Judgment on the Pleadings 67 , construed as a Rule 12(b)(6) Motion to Dismiss, and the Motion is denied.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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Riki Rashaad Muhammad,

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Plaintiff,

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No. CV 11-1890-PHX-SMM (LOA)

vs.

ORDER

Arizona Department of Corrections, et
al.,

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Defendants.

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Before the Court is Defendant Barbara Ams’ Motion for Judgment on the

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Pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Doc. 67); Plaintiff Riki

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Rashaad Muhammad opposes (Doc. 72).

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The Court will deny Ams’ motion.
I.

Background

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Muhammad initiated this civil rights action under 42 U.S.C. § 1983 in September

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2011 (Doc. 1). In July 2012, he filed his Second Amended Complaint, in which he set

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forth various constitutional claims against Arizona Department of Corrections (ADC)

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officials (Doc. 25).

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alleged that Ams knew of and disregarded an excessive risk to his safety thereby

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exposing him to a substantial risk of harm in violation of the Eighth Amendment (id. at

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29-30).

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In Count VII of his Second Amended Complaint, Muhammad

According to Muhammad, Ams provided another inmate a page from

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Muhammad’s pre-sentence report that contained confidential information about his

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involvement in the death of a child (id.).

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Ams now moves for judgment on the pleadings under Rule 12(c) on the ground

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that Muhammad failed to exhaust administrative remedies as required under the Prison

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Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. 67).

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II.

Governing Standard

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Prisoners are required to exhaust “available” administrative remedies before

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bringing any action under § 1983 or other federal law. See 42 U.S.C. § 1997e(a); Vaden

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v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-

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35 (9th Cir. 2005). Exhaustion of administrative remedies is an affirmative defense that,

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in most cases, must be raised by summary judgment. Jones v. Bock, 549 U.S. 199, 204,

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216 (2007); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014), overruling Wyatt v.

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Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). The Ninth Circuit has held that “in

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those rare cases where a failure to exhaust is clear from the face of the complaint, a

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defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a

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claim.” Albino, 747 F.3d at 1169.

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Thus, Rule 12(b)(6), not Rule 12(c), is the proper vehicle for Ams’ motion. But

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the Court evaluates a Rule 12(c) motion for judgment on the pleadings under the same

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standard as a Rule 12(b)(6) motion to dismiss. Dworkin v. Hustler Magazine Inc., 867

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F.2d 1188, 1192 (9th Cir. 1989).

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To survive a motion to dismiss, a complaint “must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)). All factual allegations set forth in the complaint are taken as true and

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construed in the light most favorable to the plaintiff. Lee v. City of L.A., 250 F.3d 668,

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679 (9th Cir. 2001) (citation omitted). A complaint may be dismissed for failure to state

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a claim only “if it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.” Silvia v. Di Vittorio, 658 F.3d
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1090, 1101 (9th Cir. 2011). Where the plaintiff is a pro se prisoner, the court must

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“construe the pleadings liberally and [] afford the petitioner the benefit of any doubt.”

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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III.

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Discussion
In her motion, Ams erroneously states that Mohammad’s First Amended

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Complaint is the operative complaint (Doc. 67 at 1, citing Doc. 9).

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Muhammad’s statement in his First Amended Complaint that “[a]dministrative remedies

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not sought due to fear of retaliation” (id. at 2, citing Doc. 9 at 18). She also cites

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statements within Muhammad’s original Complaint explaining why he feared retaliation

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for using the grievance system (id., citing Doc. 1 at 11). Relying on these statements,

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Ams argues that Muhammad’s claimed fear of retaliation is “meritless on its face”

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because the ADC provides a grievance procedure and that, since the PLRA mandates

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exhaustion of administrative remedies, Muhammad’s concession that he did not exhaust

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warrants dismissal of the claim against her (id. at 3-4).

Ams cites

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The operative complaint is the Second Amended Complaint (Doc. 25).

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original Complaint and First Amended Complaint are treated as nonexistent, and the

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Court will not consider allegations set forth in those pleadings. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1262 (9th Cir. 1992). Because Ams does not cite to the proper pleading,

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her motions fails.

The

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Nonetheless, because Muhammad states in his Second Amended Complaint that

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he did not seek administrative remedies for his claim against Ams due to fear of

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retaliation, the Court will address Ams’ argument (Doc. 25 at 30).

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As noted, the PLRA exhaustion provision requires proper exhaustion of only

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“available” administrative remedies. Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.

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2010). Exhaustion is not required when circumstances render administrative remedies

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otherwise “effectively unavailable.” Id. (quoting Nunez v. Duncan, 591 F.3d 1217, 1226

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(9th Cir. 2010). The Ninth Circuit has cited favorably to cases holding that threats or

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retaliation can render administrative remedies effectively unavailable and excuse the
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PLRA exhaustion requirement. See Sapp, 623 F.3d at 823 (citing Turner v. Burnside,

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541 F.3d 1077, 1085 (11th Cir. 2008), Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007),

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and Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006)); see also Nunez, 591 F.3d at

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1224.

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Because fear of retaliation has been recognized as a ground for finding

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administrative remedies unavailable, Muhammad’s claim that he feared retaliation is not

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meritless on its face. Further, when construing Muhammad’s allegation in his favor and

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affording him the benefit of any doubt, the fear of retaliation he experienced could have

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deterred a reasonable inmate from lodging a grievance; in which case, it might constitute

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an exception to the exhaustion requirement. See Walker v. Cal. Dep’t of Corr., No. 2:09-

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cv-0569 WBS KJN, 2014 WL 268525, at *8 (E.D.Cal. Jan. 22, 2014) (finding that threats

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of retaliation chilled the plaintiff’s ability to pursue a grievance and rendered

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administrative remedies unavailable; “the perceived threat by [defendant prison officials]

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was ‘one that would deter a reasonable inmate of ordinary firmness and fortitude from

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lodging a [new] grievance . . . .’”) (citing Turner, 541 F.3d at 1085).

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Under the Rule 12(b)(6) standard, the Court does not consider the additional

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factual allegations in Mohammad’s response, nor does it consider the unsupported

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assertions in Ams’ reply. See Van Buskirk v. Cable News Network, 284 F.3d 977, 980

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(9th Cir. 2002) (generally, a court may look only at the face of the complaint when

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deciding a motion to dismiss); see also United States v. Ritchie, 342 F.3d 903, 907 (9th

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Cir. 2003) (on Rule 12(b)(6) motion, court may consider documents attached to

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pleadings, documents incorporated by reference into a complaint, or matters of judicial

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notice without converting the motion into one for summary judgment).

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considering only the statements in Muhammad’s Second Amended Complaint, the Court

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cannot conclude that he failed to exhaust because it is possible that administrative

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remedies were rendered unavailable. Consequently, this is not one of “those rare cases”

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where the failure to exhaust is clear from the face of the complaint, and Ams’ motion will

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be denied. Albino, 747 F.3d at 1169.
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When

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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to

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Defendant Ams’ Motion for Judgment on the Pleadings (Doc. 67), construed as a Rule

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12(b)(6) Motion to Dismiss, and the Motion is denied.

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DATED this 31st day of July, 2014.

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