Merriman v. Telander et al

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/5/2017 RECOMMENDING that 18 Motion to Dismiss be denied. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOMINIQUE MERRIMAN,

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Plaintiff,

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No. 2:16-cv-2030-JAM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

JAMES TELANDER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On February 21, 2017, the court determined that plaintiff’s Eighth Amendment

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claims of deliberate indifference to mental health needs against defendants Kentner, Romano,

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Blain, Jerusik, Wallis, Telander, Farris, and Coffin were cognizable. ECF No. 10 at 2-3. Now,

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these defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) (ECF No. 18) arguing

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that plaintiff failed to exhaust his administrative remedies before filing this suit. Plaintiff filed an

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opposition (ECF No. 19) and defendants have declined to file a reply in the allotted time. After

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review of the relevant pleadings, the court recommends that defendants’ motion to dismiss be

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denied.

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I.

Legal Standards

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A.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

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A complaint may be dismissed under that rule for “failure to state a claim upon which

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relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to
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state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability

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requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.

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Iqbal, 556 U.S. at 678.

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For purposes of dismissal under Rule 12(b)(6), the court generally considers only

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allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

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subject to judicial notice, and construes all well-pleaded material factual allegations in the light

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most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

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F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

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Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal

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theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d

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at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the

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claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

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Pro se pleadings are held to a less-stringent standard than those drafted by lawyers.

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as

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true unreasonable inferences or conclusory legal allegations cast in the form of factual

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allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining

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Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

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B.

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The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action

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shall be brought with respect to prison conditions under section 1983 . . . or any other Federal

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law, by a prisoner confined in any jail, prison, or other correctional facility until such

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

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applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is

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only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S.

Dismissal for Failure to Exhaust Administrative Remedies

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731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be

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capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v.

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Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted).

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Because such motions often depend upon consideration of documents extrinsic to the

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complaint, dismissal for failure to exhaust should generally be brought and determined by way of

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a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. at

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1168. Under this rubric, the defendant bears the burden of demonstrating that administrative

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remedies were available and that the plaintiff did not exhaust those remedies. Id. at 1172. If

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defendant carries this burden, then plaintiff must “come forward with evidence showing that there

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is something in his particular case that made the existing and generally available administrative

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remedies effectively unavailable to him.” Id. If, however, “a failure to exhaust is clear on the

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face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166.

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II.

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Analysis
Defendants argue that plaintiff, by way of his second amended complaint, has admitted

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that he failed to fully exhaust claims II through VIII. ECF No. 18 at 6. They claim that the

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second amended complaint indicates that plaintiff didn’t even attempt to exhaust these claims. Id.

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Plaintiff disputes that he admitted to not exhausting claim VIII, but otherwise concedes that he

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did not ‘individually’ exhaust claims II-VII. ECF No. 19 at 6-7. He claims, however, that he did

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fully exhaust claim IX, which subsumes and consolidates these previous claims.1 Id. at 7. In

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their motion, defendants argue that claim IX refers only to the acts and omission of Drs. Carr and

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Pickering, neither of whom was listed as a defendant to this action. ECF No. 18 at 5. Plaintiff

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contends that this interpretation of the complaint is incorrect and that claim IX refers not only to

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Carr and Pickering, but also to the allegations against the named defendants in claims II-VIII.

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ECF No. 19 at 7-8.

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Plaintiff also claims that claim IX incorporates claim I which concerns his Fourth
Amendment rights. ECF No. 19 at 7. His Fourth Amendment claim, however, was dismissed on
screening. ECF No. 10 at 4.
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First, whether plaintiff exhausted claim VIII is ultimately irrelevant because the court

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dismissed this claim as improperly joined. See ECF No. 8 at 12; ECF No. 10 at 4. Turning to

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claims II-VII, the court notes that the second amended complaint does indicate that each of these

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claims was not individually exhausted before this suit was filed. ECF No. 8 at 7-11. However, in

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light of plaintiff’s contention that he consolidated these claims as part a broader grievance that

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was exhausted, the court concludes that dismissal of these claims would not be appropriate on a

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motion to dismiss. Critically, none of the relevant grievance record is before this court. As such,

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it is impossible to determine whether: (1) the grievance submitted in connection with claim IX

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was actually fully exhausted; and (2) to the extent that grievance was exhausted, whether it covers

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all, some, or none of the other relevant claims. It is significant that failure to exhaust is “an

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affirmative defense the defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204, 216

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(2007). Where the plaintiff’s complaint itself does not clearly demonstrate a failure to exhaust

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available remedies, the defendant must present relevant evidence that “demonstrate[s] that

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pertinent relief remained available, whether at unexhausted levels of the grievance process or

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through awaiting the results of the relief already granted as a result of that process.” Brown v.

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Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). Defendants have not done so here, nor could they.

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Defendants have raised this defense by way of a Rule 12(b)(6) motion which confines the court to

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the allegations of the complaint. To present evidence or documents extrinsic to the complaint,

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defendant must proceed under Rule 56.

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Based on the foregoing, the court concludes that the failure to exhaust is not apparent

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from the face of the second amended complaint.

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III.

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Conclusion
For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion to

dismiss (ECF No. 18) 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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 5, 2017.

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