Washington v. Mohammed et al

Filing 53

ORDER signed by Judge Kimberly J. Mueller on 3/26/2013 FINDINGS AND RECOMMENDATIONS 51 are NOT ADOPTED; Defendants' 16 Motion to Dismiss is DENIED; and this matter is REFERRED back to the Magistrate Judge for further proceedings consistent with this order. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN WASHINGTON,

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Plaintiff,

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No. 2:08-CV-0386-KJM-CMK-P

vs.

ORDER

SALEM MOHAMED, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action under 42

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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by the

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Eastern District of California local rules.

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On October 22, 2012, the Magistrate Judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Timely objections to the findings and recommendations have been filed.

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(ECF 52.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)©) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court declines to adopt the findings and recommendations. For the reasons below, the court

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DENIES defendants’ motion to dismiss without prejudice.
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A motion to dismiss for failure to exhaust administrative remedies prior to filing

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suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d

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1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial

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remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at

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1119-20. Defendants bear the burden of proving plaintiff’s failure to exhaust. Id. at 1119. To

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bear this burden:

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a defendant must demonstrate that pertinent relief remained
available, whether at unexhausted levels of the grievance process
or through awaiting the results of the relief already granted as a
result of that process. Relevant evidence in so demonstrating
would include statutes, regulations, and other official directives
that explain the scope of the administrative review process;
documentary or testimonial evidence from prison officials who
administer the review process; and information provided to the
prisoner concerning the operation of the grievance procedure in
this case,. . . . With regard to the latter category of evidence,
information provided the prisoner is pertinent because it informs
our determination of whether relief was, as a practical matter,
“available.”

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Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). However, it is improper for a court

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entertaining a 12(b) motion to make credibility determinations when, as in the instant case, the

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court is presented with differing versions of events. See Data Disc, Inc. v. Sys. Tech. Assocs.,

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Inc., 557 F.2d 1280, 1284-85 (9th Cir. 1973) (“Where affidavits are directly conflicting on

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material points, we do not see how it is possible for the district judge to ‘weigh’ the affidavits in

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order to resolve disputed issues.”); see also Ortega v. Giamalvo, No. C–07–04436 ED, 2011 WL

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2445315, at *5 (N.D. Cal. June 16, 2011) (citing Barretto v. Smith, 2009 WL 1271984, 2009 WL

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1271984, at *7 (E.D. Cal. Mar. 6, 2009) (“Under these circumstances, in which the parties offer

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competing declarations setting forth differing versions of events, the court cannot make the

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necessary credibility determination to resolve the exhaustion issue on a motion to dismiss.”)).

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Before the court are competing declarations on the question whether plaintiff
exhausted his administrative remedies, which turns on whether plaintiff was told by prison staff
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not to file a grievance. Cf. Marells v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam)

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(plaintiff did not fail to exhaust when prison staff told him no remedy was available). Plaintiff

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has sworn that Correctional Officer Hilliard told him not to file a grievance. (Pl.’s Decl. ¶ 13,

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Ex. 1, Opp’n to Defs.’ Mot. to Dismiss, ECF 18). Hilliard swears he never told plaintiff not to

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file one. (Hilliard Supp. Decl. ¶¶ 7-8, Reply, ECF 21-1.) FBI Agent Pifer’s declaration,

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provided by defendants after remand, that contrary to plaintiff’s assertion she was never made

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aware of any grievance prepared by plaintiff may cast doubt on plaintiff’s credibility (Pifer Decl.

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¶¶ 2-4, Supp. Brief in Support of Mot. to Dismiss, ECF 42-1), but it does not permit the court to

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make credibility determinations to resolve this disputed exhaustion issue. The burden to prove

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failure to exhaust lies with defendants. Wyatt, 315 F.3d at 1119. The court finds defendants

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have not met this burden. As the question whether defendants have met their burden is the only

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one before this court, the court DENIES defendants’ motion to dismiss.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations filed October 22, 2012, are not

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2.

Defendants’ motion to dismiss (Doc. 16) is denied; and

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3.

This matter is referred back to the magistrate judge for further proceedings

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adopted;

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consistent with this order.

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DATED: March 26, 2013.

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UNITED STATES DISTRICT JUDGE

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