Greenblatt v. Patel, et al.

Filing 62

ORDER DENYING 57 Motion to Dismiss on Procedural Grounds; ORDER DENYING AS MOOT 59 Motion for Extension of Time; ORDER Requiring Defendants to File Responsive Pleading or Motion within Thirty Days; ORDER Deeming Request for Clarification Addressed,signed by District Judge Lawrence J. O'Neill on 04/09/2014. (30 Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN PATRICK GREENBLATT,

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Plaintiff,
v.

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DR. I. PATEL, et al.,
Defendants.

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Case No. 1:12-cv-00046-LJO-SKO (PC)
ORDER (1) DENYING MOTION TO
DISMISS ON PROCEDURAL GROUNDS,
(2) REQUIRING DEFENDANTS TO FILE
RESPONSIVE PLEADING OR MOTION
WITHIN THIRTY DAYS, (3) DENYING
MOTION FOR EXTENSION OF TIME AS
MOOT, AND (4) DEEMING REQUEST FOR
CLARIFICATION ADDRESSED

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(Docs. 57, 59, and 60)
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_____________________________________/
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18 I.

Procedural History

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Plaintiff Shawn Patrick Greenblatt (“Plaintiff”), a state prisoner proceeding pro se and in

20 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 10, 2012.
21 This action is proceeding against Defendants Brockington, Gringas, Lawson, and Ocampo
22 (“Defendants”) for violating Plaintiff’s rights under the Eighth Amendment of the United States
23 Constitution.
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On March 21, 2014, Defendants filed an unenumerated Rule 12(b) motion to dismiss for

25 failure to exhaust and a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
26 relief may be granted. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). On March 31, 2014, Plaintiff
27 filed a motion seeking an extension of time to file a response to the motion to dismiss, and on
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1 April 4, 2014, Defendants filed a motion seeking clarification in light of the decision in Albino v.
2 Baca, No. 10-55702, 2014 WL 1317141 (9th Cir. Apr. 3, 2014) (en banc).
3 II.

Discussion

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A.

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On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a

Unenumerated Rule 12(b) Motion to Dismiss

6 decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the
7 proper procedural device for raising the issue of administrative exhaustion. Albino, 2014 WL
8 1317141, at *1. Following the decision in Albino, Defendants may raise the issue of exhaustion in
9 either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is
10 clear on the face of the complaint, or (2) a motion for summary judgment. Id. at *4 (quotation
11 marks omitted). An unenumerated Rule 12(b) motion is no longer the proper procedural device
12 for raising the issue of exhaustion and Defendants’ motion to dismiss is denied on procedural
13 grounds, without prejudice to renewal. Id.
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B.

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In moving to dismiss under Rule 12(b)(6), Defendants attached the declaration of C.

Rule 12(b)(6) Motion to Dismiss

16 Pfeiffer, Associate Warden of Business Services, and supporting business records. Defendants
17 request that the Court take judicial notice of the declaration and business records, and they argue
18 the Court can consider the evidence without converting the motion to one for summary judgment,
19 based on the taking of judicial notice.
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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a

21 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of
22 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d
23 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct.
24 1762 (2012). In resolving a 12(b)(6) motion, a court’s review is generally limited to the operative
25 pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v.
26 Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 100327 04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.
28 1998). However, courts may properly consider matters subject to judicial notice and documents
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1 incorporated by reference in the pleading without converting the motion to dismiss to one for
2 summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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Statements in C. Pfeiffer’s declaration and the supporting business records may be subject

4 to dispute and as such, they are not indisputable “facts” subject to judicial notice. Fed. R. Evid.
5 201(b); Ritchie, 342 F.3d at 908-09; In re Oracle Corp. Securities Litigation, 627 F.3d 376, 386
6 n.1 (9th Cir. 2010); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007). Therefore, it is not
7 appropriate for the Court to consider Defendants’ evidence without converting the motion into one
8 for summary judgment. Ritchie, 342 F.3d at 909. If Defendants believe Plaintiff has named the
9 wrong parties, as they argue, they may file a properly noticed motion for summary judgment
10 raising that issue and provide Plaintiff with the requisite contemporaneous “fair notice” of the
11 requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012).
12 III.

Order

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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1.

Defendants’ motion to dismiss, filed on March 21, 2014, is denied on procedural

15 grounds, without prejudice to renewal pursuant to Fed. R. Civ. P. 56 and Local Rule 260;
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2.

Defendants have thirty (30) days from the date of service of this order within

17 which to file a responsive pleading or motion;
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3.

Plaintiff’s motion for an extension of time to file a response to the motion to

19 dismiss, filed March 31, 2014, is denied as moot; and
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4.

Defendants’ motion for clarification in light of Albino, filed on April 4, 2014, is

21 deemed addressed.
IT IS SO ORDERED.
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Dated:

/s/ Lawrence J. O’Neill

April 9, 2014

UNITED STATES DISTRICT JUDGE
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