Savoy v. Schlachter

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 09/19/13 recommending that defendant's motion to dismis or in the alternative for a more definite statement 19 be denied. MOTION to DISMISS 19 . referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERWIN SAVOY,

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No. 2:13-cv-0014 JAM AC P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

STAN SCHLACHTER,
Defendant.

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Plaintiff, a state prisoner, proceeds pro se and in forma pauperis with a civil rights

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complaint filed pursuant to 42 U.S.C. § 1983. Defendant Schlachter moves to dismiss the

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complaint pursuant to Rule 12(b)(6), or, in the alternative, for a more definite statement pursuant

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to Rule 12(e) of the Federal Rules of Civil Procedure. Defendant contends (1) the complaint fails

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to allege that plaintiff exhausted administrative remedies and therefore fails to state a claim; and

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(2) the complaint is so vague, ambiguous and unintelligible that defendant cannot reasonably

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prepare a response. Plaintiff opposes the motion and defendant has replied.

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Allegations in the Amended Complaint

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At all times relevant, plaintiff was a disabled inmate incarcerated at Mule Creek State

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Prison (“MCSP”) and defendant was employed as a physical therapist at MCSP. ECF No. 1 at 2.

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In 2011−2012, on two separate occasions, plaintiff was escorted by prison guards to defendant’s

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office. Id. While the guards waited outside, defendant “ordered Plaintiff to lay down on a
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padded table. [Defendant] would then grab Plaintiff in the groin and buttocks areas and squeeze

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while he rubbed his penis on Plaintiff’s head for about ten minutes.” Id. Plaintiff asked

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defendant to stop; defendant replied “Shut up and lay there.” Id. at 2−3. Plaintiff did not

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immediately report the assault because he feared retaliation. Id. at 3. In July 2012, after being

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told that defendant had been fired for sexually assaulting another inmate, plaintiff reported the

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sexual assault. Id.

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Exhaustion of Administrative Remedies

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Pursuant to the Prison Litigation Reform Act (“PLRA”):

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No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in a jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.

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42 U.S.C. § 1997e (a); see also Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); Brown v.

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Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)

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(The PLRA “creates ‘a general rule of exhaustion’ for prisoner civil rights cases.”).

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Compliance with the exhaustion requirement is mandatory for any type of relief sought.

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Booth v. Churner, 532 U.S. 731, 739, 741 (2001) (holding that prisoners must exhaust their

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administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money

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damages, even though the latter is unavailable pursuant to the administrative grievance process);

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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549

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U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and

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that unexhausted claims cannot be brought in court.”).

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The PLRA’s exhaustion requirement is not jurisdictional; rather, it creates an affirmative

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defense that a defendant may raise in an unenumerated Rule 12(b) motion. See Jones, 549 U.S. at

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213–14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810 (2003).

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The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315

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F.3d at 1119. When a prisoner has not exhausted administrative remedies on a claim, “the proper

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remedy is dismissal of the claim without prejudice.” Id. at 1120.

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In deciding a motion to dismiss for failure to exhaust, a court may “look beyond the

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pleadings and decide disputed issues of fact.” Wyatt, 315 F.3d at 1119–20. Thus, the parties may

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go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but

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plaintiff must be provided with notice of his opportunity to develop a record. Id. at 1120 n.14.

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Plaintiff was provided with such notice on January 31, 2013 and again contemporaneously with

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the filing of the motion to dismiss on June 10, 2013. ECF Nos. 9, 19. See Woods v. Carey, 684

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F.3d 934 (9th Cir. 2012).

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Here, defendant moves to dismiss the complaint for failure to exhaust under Rule
12(b)(6). Defendant asserts, first, that the complaint fails to allege that plaintiff exhausted

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administrative remedies before filing suit and therefore that the complaint fails to state a claim.

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Defendant is incorrect. “[I]nmates [asserting claims under section 1983] are not required to

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specially plead or demonstrate exhaustion in their complaints.” Bock, 549 U.S. at 216.

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Defendant next asserts the complaint should be dismissed because plaintiff has not

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provided documentary evidence that he exhausted administrative remedies through the third and

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final level of review in response to defendant’s motion. Again, defendant is incorrect. Failure to

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exhaust is an affirmative defense under the PLRA and the defendant bears the burden of raising

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and proving the absence of exhaustion. Id.; see also Wyatt, 315 F.3d at 1119. Defendant has

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raised the issue of exhaustion, but has not proved the absence of exhaustion and has submitted no

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evidence in this regard. Plaintiff need not prove exhaustion simply because defendant raised the

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issue. In his reply brief, defendant quotes from the Wyatt warning issued to plaintiff, which states

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that a plaintiff must submit proof of specific facts regarding exhaustion. The quoted passage

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states, in a phrase highlighted by defendant, “If you fail to contradict the defendant’s evidence

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with your own evidence, the court may accept the defendant’s evidence as the truth and grant the

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motion.” ECF No. 27 at 2. Here, defendant presented no evidence regarding exhaustion, so

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plaintiff had no duty to produce contradictory evidence. See Wyatt, 315 F.3d at 1120 (reversing

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dismissal for nonexhaustion where defendants’ evidence of nonexhaustion was insufficient); see

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also Albino v. Baca, 697 F.3d 1023, 1031 & n.5 (9th Cir. 2012) (burden shifts to plaintiff only

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after defendant demonstrates absence of exhaustion). For these reasons, defendant’s motion to
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dismiss brought under Rule 12(b)(6) for failure to exhaust should be denied.

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Rule 8 Standard

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Defendant next asserts that the complaint does not provide a short and plain statement of

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the claim pursuant to Fed. R. Civ. P. 8.
Rule 8 requires a “short and plain statement” showing grounds for jurisdiction and that the

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pleader is entitled to relief. Fed. R. Civ. P. 8. A plaintiff is required to allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[s]pecific facts are

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not necessary; the statement [of facts] need only give the defendant fair notice of what the…

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claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(quoting Twombly, 550 U.S. at 555). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers. See Erickson, 551 U.S. at 94.

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Defendant contends the allegations in the complaint do not allow the court to draw the

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reasonable inference that defendant is liable for any misconduct alleged. ECF No. 19 at 7. The

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court does not understand this argument. Plaintiff has explicitly alleged that defendant sexually

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assaulted him in violation of the Eighth Amendment. See Wood v. Beauclair, 692 F.3d 1041,

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1046 (9th Cir. 2012) (“Sexual harassment or abuse of an inmate by a corrections officer is a

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violation of the Eighth Amendment.”). Plaintiff’s allegations give defendant fair notice of the

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claim and the grounds upon which it rests. Dismissal is not warranted under Rule 12(b)(6).

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Motion for More Definite Statement

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In the alternative to dismissal, defendant moves for an order requiring plaintiff to provide

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a more definite statement. The federal rules of civil procedure provide that “[a] party may move

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for a more definite statement of a pleading… which is so vague or ambiguous that the party

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cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e).

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A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant

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cannot ascertain the nature of the claim being asserted in order to frame a response. See

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Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). The Court

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must deny the motion if the complaint is specific enough to notify defendant of the substance of
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the claim being asserted. See Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 1996).

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The Court may also deny the motion if the detail sought by a motion for a more definite statement

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is obtainable through the discovery process. See Beery v. Hitachi Home Electronics (America),

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Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993).

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Again, plaintiff’s complaint is not so vague or ambiguous that defendant cannot ascertain

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its substance or reasonably prepare a response. Contrary to defendant’s assertion, plaintiff has

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pleaded facts supporting his claim and those factual allegations are indeed comprehensible.

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Although defendant further contends it is unclear whether the sexual assaults occurred within the

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applicable statute of limitations, as plaintiff alleges that the assaults occurred on two occasions in

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2011-2012, such information may be sought through the discovery process. Because defendant

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has fair notice of the claim and may seek additional information as to the timing of the alleged

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assaults through the discovery process, the motion for a more definite statement should be denied.

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Conclusion

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In accordance with the above, IT IS RECOMMENDED that defendant’s motion to

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dismiss or, in the alternative, for a more definite statement (ECF No. 19) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 19, 2013

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AC:ls//savo0014.57

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