Perkins v. Martinez et al

Filing 35

ORDER Regarding 34 Plaintiff's Exhaustion Motion signed by Magistrate Judge Stanley A. Boone on 3/1/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALONZO RAYSHAWN PERKINS,

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Plaintiff,

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v.
A. MARTINEZ, et al.,

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Defendants.

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Case No.: 1:18-cv-00501-SAB (PC)
ORDER REGARDING PLAINTIFF’S
EXHAUSTION MOTION
[ECF No. 34]

Plaintiff Alonzo Rayshawn Perkins is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983.
On February 27, 2019, Plaintiff filed an “exhaustion motion.” (ECF No. 34.) In his motion,

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Plaintiff merely attaches copies of the inmate grievances he contends are relevant to the claims in this

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action. The Court therefore will construe Plaintiff’s motion as a request for judicial notice.
Rule 201 of the Federal Rules of Evidence permits a court to take judicial notice of any facts

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which may be “accurately and readily determined from sources whose accuracy cannot reasonably be

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questioned.” Fed. R. Evid. 201(b) and (d). However, a Court may only take judicial notice of facts

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contained in a state agency’s records where the facts are not subject to a reasonable dispute.” Brown

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v. Valoff, 422 F.3d 926, 931 n. 7 (9th Cir. 2005).

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The Court does not take judicial notice of documentation; rather, it takes judicial notice of facts

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not subject to reasonable dispute. See Fed. R. Evid. 201. The failure to exhaust is an affirmative defense,

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and the defendants bear the burden of raising and proving the absence of exhaustion. Jones v. Bock,

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549 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that

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a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under

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Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving

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the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed

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evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id. Thus, the

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Court cannot take judicial notice of the documentation provided by Plaintiff to determine factually

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whether he exhausted the administrative remedies. If Defendants file a motion for summary judgment

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regarding exhaustion of the administrative remedies, Plaintiff may raise any arguments in opposition at

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that time. Accordingly, Plaintiff’s request for judicial notice is denied.

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IT IS SO ORDERED.

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Dated:

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March 1, 2019
UNITED STATES MAGISTRATE JUDGE

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