Powell v. Widley et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Defendants Davies, Rodriguez, Vasquez and Wilson's Motion to Dismiss 23 be Denied; Defendants Widley and Zimmerman be Dismissed without prejudice ; ORDER DENYING Plaintiff's 27 Motion for Leave to Amend; referred to Judge Ishii, signed by Magistrate Judge Jeremy D. Peterson on 06/27/18. (Objections to F&R due by 7/16/2018) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAMEON LAMONT POWELL,
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Plaintiff,
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v.
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CORRECTIONAL OFFICER WIDLEY,
et al.,
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Case No. 1:17-cv-00824-AWI-JDP
FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS’ MOTION TO
DISMISS BE DENIED
(Doc. No. 23)
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FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS WIDLEY AND
ZIMMERMAN BE DISMISSED WITHOUT
PREJUDICE
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OBJECTIONS, IF ANY, DUE IN 14 DAYS
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ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND
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(Doc. No. 27)
Defendants.
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Plaintiff Dameon Lamont Powell is a state prisoner proceeding pro se in this civil rights
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action. He makes two claims under 42 U.S.C. § 1983: (1) excessive force in violation of the
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Eighth Amendment by defendants Widley, Zimmerman, Vasquez, Rodriguez, and Davies; and
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(2) deliberate indifference to serious medical needs in violation of the Eighth Amendment by
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defendant Wilson, a registered nurse (“RN”). (Doc. No. 14 at 3.) He alleges that he is a victim of
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unprovoked attacks by defendants Widley, Zimmerman, Vasquez, Rodriguez, and Davies.
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According to plaintiff, defendants extracted him from his cell and “stomped” his head against the
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floor, inflicting serious injuries, including broken ribs and a torn knee ligament. Plaintiff also
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alleges that defendant Davies unjustifiably pepper-sprayed him while he was handcuffed and
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locked in a cage, and that defendant RN Wilson denied medical care for his injuries.
Defendants’ motion to dismiss for failure to exhaust administrative remedies
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A.
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Defendants Davies, Rodriguez, Vasquez, and Wilson have filed a motion to dismiss under
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Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argue that the court should dismiss
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plaintiff’s first amended complaint because it is apparent on the face of the complaint that he
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failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act.
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See 42 U.S.C. § 1997e (“No action shall be brought with respect to prison conditions under
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section 1983 . . . by a prisoner . . . until such administrative remedies as are available are
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exhausted.”).
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Exhaustion of administrative remedies is an affirmative defense that defendants must
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plead and prove. See Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014). Plaintiffs are not
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required plead the “subject of an anticipated affirmative defense” in their complaint. See Rivera
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v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). However, a defendant may raise a
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defense by motion to dismiss when an affirmative defense is obvious on the face of a complaint.
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Id.; accord Albino, 747 F.3d at 1169 (providing that granting a motion to dismiss would be
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appropriate in those “rare cases where a failure to exhaust is clear from the face of the
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complaint”) (emphasis added).
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Defendants point to the form that plaintiff used to draft his first amended complaint as
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evidence that he failed to exhaust his administrative remedies. The form contains a statement of
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law concerning exhaustion of administrative remedies and warns that the case may be dismissed
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“[i]f the court determines that an inmate failed to exhaust prior to filing suit . . . .” The form then
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asks two questions:
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A. Is there an inmate appeal or administrative remedy process available at your
institution?
B. Have you filed an appeal or grievance concerning ALL of the facts contained
in this complaint?
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(Doc. No. 12 at 2.) Plaintiff answered “yes” to the first question and “no” to the second question.
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(Id.) He added that “administrative remedies do not apply” and that he “was placed in a mental
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health crisis bed.” (Id.)
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“An inmate is required to exhaust only available remedies.” Albino, 747 F.3d at 1171
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(emphasis in original). “To be available, a remedy must be available ‘as a practical matter’; it
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must be ‘capable of use; at hand.’” Id. Plaintiff’s placement in a mental health crisis bed—an
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allegation that the court accepts as true at this stage—raises questions of whether administrative
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remedies were practically available to him, even if such remedies were generally available at
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plaintiff’s institution. See id.
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Notwithstanding the questions asked on the form used by plaintiff, the availability of
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administrative remedies is a factual issue that is generally better considered at the summary
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judgment stage. See id. at 1170 (explaining that either party may file a summary judgment
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motion addressing exhaustion and that, if a factual dispute exists, exhaustion may be decided
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following a hearing). Defendants cannot obtain dismissal at this stage—as they attempt to do—
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by arguing that plaintiff “has not alleged any facts” to show that “his failure to exhaust his
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administrative remedies [were unavailable.]” (Doc. No. 23 at 8.) There is no requirement that
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plaintiff allege such facts at this stage.1 See Rivera, 735 F.3d at 902. Therefore, the court is not
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convinced that this is one of the “rare cases” in which it is apparent on the face of the complaint
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that a prisoner did not exhaust available administrative remedies, and the court will deny
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defendants’ motion to dismiss. Albino, 747 F.3d at 1169.
Plaintiff’s motion for leave to amend
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B.
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In response to defendants’ motion to dismiss, plaintiff requests leave to supplement his
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complaint with additional factual allegations regarding his attempts to exhaust administrative
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remedies. The court will deny this motion, since there is no requirement that plaintiff plead
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information relevant to affirmative defenses. See Rivera, 735 F.3d at 902.
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The complaint form used by plaintiff has the potential to lead a plaintiff—particularly a pro se
plaintiff—into making unnecessary admissions that might support affirmative defenses.
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C.
Unserved defendants
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On February 6, 2018, the court issued an order to show cause why defendants Widley and
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Zimmerman should not be dismissed from this case without prejudice based on plaintiff’s failure
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to effectuate service of process. (Doc. No. 26.) The order indicated that summonses had been
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returned unexecuted for defendants Widley and Zimmerman (Doc. Nos. 20-21), and that these
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defendants had not been served within the 90-day “time limit for service” under Federal Rule of
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Civil Procedure 4(m). The order provided plaintiff with instructions on how to conduct discovery
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intended to locate defendants.
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The court gave plaintiff twenty-one days to respond to the order to show cause and
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warned that “failure to comply with this Order may result in the dismissal of Defendants Widley
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and Zimmerman without prejudice.” (Doc. No. 26 at 3.) Plaintiff did not respond to the order or
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request an extension of time for service. Therefore, the court will recommend that defendants
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Widley and Zimmerman be dismissed without prejudice.
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D.
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Accordingly, it is ordered that plaintiff’s motion for leave to amend (Doc. No. 27) be
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Conclusion
denied, and it is recommended that:
1. defendants Davies, Rodriguez, Vasquez, and Wilson’s motion to dismiss (Doc. No.
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2. defendants Widley and Zimmerman be dismissed without prejudice.
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The undersigned submits the findings and recommendations to the U.S. District Judge
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who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules
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of Practice for the United States District Court, Eastern District of California. Within
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FOURTEEN (14) days of the service of the findings and recommendations, petitioner may file
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written objections to the findings and recommendations with the court and serve a copy on all
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parties. That document must be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The assigned District Judge will then review the findings and
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recommendations under 28 U.S.C. § 636(b)(1)(C). Petitioner’s failure to file objections within
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the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772
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F.3d 834, 839 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
June 27, 2018
/s/
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Jeremy D. Peterson
UNITED STATES MAGISTRATE JUDGE
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