Ricky Dillingham v. K. Mills et al

Filing 33

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Jesus G. Bernal for Report and Recommendation 27 , MOTION to Dismiss 17 . IT IS ORDERED that (1) Defendants' Motion to Dismiss is GRANTED, IN PART, AND DENIED, IN PART, as follows: (a) the Motion is GRANTED to the extent that Plaintiff's due process claim is dismissed without leave to amend as to all Defendants; and his Eighth Amendment claim is dismissed without leave to amend, but without prejudice, as to Defendants Wil liams and Solorio; and (b) the Motion is otherwise DENIED. Defendants Mills and Anderson are ORDERED to file an Answer to the Complaint's Eighth Amendment claim no later than thirty (30) days from the date of this Order. (SEE DOCUMENT FOR FURTHER DETAILS) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RICKY DILLINGHAM,
Plaintiff,

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Case No. CV 24-02966-JGB (AS)
ORDER ACCEPTING IN PART AND

v.
REJECTING IN PART FINDINGS,
K. MILLS, et, al.,
CONCLUSIONS AND RECOMMNEDATIONS OF
Defendants.

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UNITED STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the

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Complaint,

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Recommendation of a United States Magistrate Judge (“R&R”). After

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having made a de novo determination of the portions of the Report

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and Recommendation to which Objections were directed, the Court

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concurs with and accepts, in part, and rejects, in part, the

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findings and conclusions of the Magistrate Judge.

all

of

the

records

herein,

and

the

Report

and

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The Magistrate Judge recommends that Defendants’ Motion to

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Dismiss be granted and the Complaint be dismissed without leave to

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amend, on the grounds that Plaintiff failed to state a claim for

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violation

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administrative remedies with respect to his Eighth Amendment claim

of

due

process

and

failed

to

exhaust

available

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against Defendants Mills, Williams, Solario, and Anderson. (See

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R&R

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reasonably

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evident on the face of the Complaint, given that Plaintiff had

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referenced only one relevant first-level grievance, dated September

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28, 2023, and it did not give legally sufficient notice of the

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issue underlying his Eighth Amendment claim. (R&R at 17-22; see

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Compl. at 7-8, 10-11, 30-31; Opposition at 9-10).

at

7-23).

As

to

concluded

the
that

latter

claim,

Plaintiff’s

the

Magistrate

failure

to

Judge

exhaust

was

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However, in his Objections, Plaintiff now states that he

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exhausted his Eighth Amendment claim in a different administrative

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grievance, dated September 30, 2023, which allegedly never received

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a response from the grievance office despite a follow-up inquiry

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from Plaintiff three months later. (Objections at 4-5). A copy of

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this grievance is attached to the Objections; it asserts an Eighth

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Amendment violation by Defendants Mills and Anderson. (Objections

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Ex. A).

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It is unclear why Plaintiff did not previously mention this

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grievance, either in his Complaint or his Opposition to Defendants’

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Motion. Nonetheless, it is within this Court’s discretion to accept

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new

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Blanas, 393 F.3d 918, 935 (9th Cir. 2004); United States v. Howell,

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231 F.3d 615, 621 (9th Cir. 2000); see also 28 U.S.C. § 636(b)(1)

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(district court judge “may also receive further evidence”). Because

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Plaintiff’s new evidence plausibly demonstrates that he exhausted

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his Eighth Amendment claim against Defendants Mills and Anderson

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(but not the other two Defendants) – and thus undermines the

evidence

or

argument

submitted

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with

objections.

Jones

v.

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Magistrate Judge’s conclusion that such claim warrants dismissal

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on its face – the Court finds it appropriate to consider it.

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Defendants argue that if the Court considers the new evidence,

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the Complaint’s Eighth Amendment claim against Mills and Anderson

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still warrants dismissal, albeit with leave to amend, apparently

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because

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grievance. (See Docket No. 32 at 1-2, 6-7). However, Plaintiff is

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not required to affirmatively plead or demonstrate exhaustion. See

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Nunez v. Duncan, 591 F.3d 1217, 1223-24 (9th Cir. 2010). Thus,

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while Plaintiff’s silence regarding this other grievance, both in

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his

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Magistrate Judge to conclude - mistakenly, as to Mills and Anderson

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– that a failure to exhaust was clear on the face of the Complaint,

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the Complaint’s Eighth Amendment claim itself is not deficient, at

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least as to Mills and Anderson. On the other hand, as it remains

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clear that Plaintiff did not exhaust his claim as to Defendants

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Williams and Solorio, dismissal remains appropriate on that basis.

the

Complaint

Complaint

and

his

itself

failed

Opposition

to

to

reference

the

Motion,

this

other

misled

the

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The Court therefore declines to accept the Magistrate Judge’s

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recommendation

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against Defendants Mills and Anderson, but otherwise concurs with

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and accepts the findings and conclusions of the Magistrate Judge.

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Plaintiff’s

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conclusions do not merit discussion and are overruled.

to

other

dismiss

Plaintiff’s

objections

Eighth

regarding

such

Amendment

findings

claim

and

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IT IS ORDERED that (1) Defendants’ Motion to Dismiss is

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GRANTED, IN PART, AND DENIED, IN PART, as follows: (a) the Motion
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is GRANTED to the extent that Plaintiff’s due process claim is

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dismissed without leave to amend as to all Defendants; and his

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Eighth Amendment claim is dismissed without leave to amend, but

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without prejudice, as to Defendants Williams and Solorio;1 and (b)

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the Motion is otherwise DENIED.

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Defendants Mills and Anderson are ORDERED to file an Answer

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to the Complaint’s Eighth Amendment claim no later than thirty (30)

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days from the date of this Order.

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IT IS FURTHER ORDERED that the Clerk serve copies of this

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Order and the Magistrate Judge’s Report and Recommendation on

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Plaintiff and counsel for Defendants.

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DATED: March 5, 2025
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______________________________
JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE

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See Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006)
(dismissal for failure to exhaust administrative remedies is
without prejudice); McKinney v. Carey, 311 F.3d 1198, 1199 (9th
Cir.
2002)
(per
curiam)
(prisoner’s
failure
to
exhaust
administrative remedies prior to presenting a claim to a federal
court requires dismissal without prejudice under 42 U.S.C.
§ 1997e(a)).
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