Anderson v. McIntrny, et al.

Filing 56

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/19/15 granting 47 Motion to Dismiss. This first amended complaint 6 is dismissed with leave to amend. Plaintiff's motion for leave to file a supplemental complaint 54 is denied as moot. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR ANDRESON,

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No. 2:14-cv-0011 MCE CKD P

Plaintiff,
v.

ORDER

McINTRNY, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action pursuant to 42

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U.S.C. § 1983. This action proceeds on the First Amended Complaint (ECF No. 6), which was

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found to state a First Amendment retaliation claim against defendant McIntrny (ECF No. 22).

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Before the court is defendant’s April 10, 2015 motion to dismiss the complaint under Rule

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12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff’s failure to exhaust

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administrative remedies is clear on the face of the complaint. (ECF No. 47.) Plaintiff has not

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opposed the motion.

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I. Rule 12(b)(6) Standard

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

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at 570). In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the party opposing the motion, and resolve all

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doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S.

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869 (1969). The court may consider facts established by exhibits attached to the complaint.

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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider

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facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385,

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1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers

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filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

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II. Exhaustion Requirement

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Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action shall be

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brought with respect to prison conditions under section 1983 of this title, . . . until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a) (also known as

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the Prison Litigation Reform Act (“PLRA”)). A prisoner must exhaust his administrative

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remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir.

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2002). Failure to comply with the PLRA’s exhaustion requirement is an affirmative defense that

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must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the

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Ninth Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion

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to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of

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the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th

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Cir. 2014) (en banc).

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An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion

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requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). When an inmate’s administrative

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grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as

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“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v.

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Duncan, 591 F.3d 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s

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administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1045 (9th
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Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005)

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(plaintiff not required to proceed to third level where appeal granted at second level and no

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further relief was available).

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III. Analysis

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In the FAC, plaintiff alleges that defendant harassed him and used racist language towards

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him. On January 12, 2015, plaintiff filed a 602 inmate appeal and gave it to a non-defendant

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correctional officer. Later that day, defendant told plaintiff that plaintiff, who was 74 years old,

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would be dead before the court did anything to defendant. He also said that if plaintiff wrote

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another inmate appeal, “it [won’t] go nowhere, I’ll see to that, me and the other guys.” (ECF No.

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6 at 6-7.)

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On the complaint form provided by the court, plaintiff checked boxes indicating that there

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was a grievance procedure available at his institution; that he had filed a grievance concerning the

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facts relating to this complaint; and that the grievance process was not completed. (Id. at 2.)

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Plaintiff provided no explanation why he did not pursue the grievance through all levels of

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administrative review, or whether he attempted to do so. Defendant argues that plaintiff has

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“effectively conceded, under penalty of perjury, that he did not exhaust administrative remedies.”

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(ECF No. 47-1 at 5.)

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Nor does plaintiff oppose the instant motion. Rather, he seeks to supplement or amend

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the FAC to allege ongoing racial harassment by prison staff. (ECF Nos. 54, 55.) These recent

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filings do not address the exhaustion issue.

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Based on the foregoing, the court will grant defendant’s motion, but give plaintiff one

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final opportunity to file an amended complaint that complies with the exhaustion requirement or

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explains why exhaustion was “effectively unavailable.” A pro se litigant should be given leave

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to amend, unless it is clear that the deficiencies of the complaint cannot be cured by amendment.

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Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion to dismiss (ECF No. 47) is granted;

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2. The First Amended Complaint (ECF No. 6) is dismissed with leave to amend;
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3. Plaintiff’s motion for leave to file supplemental complaint (ECF No. 54) is denied as
moot; and

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: May 19, 2015

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2 / ande0011.mtd_ex

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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