Gibbs v. Farley et al

Filing 49

ORDER Denying Without Prejudice Motion to Dismiss; Scheduling Amended Complaint, Motions terminated: 38 MOTION for Leave to File, 23 MOTION to Dismiss ; Under Rule 12(B); Memorandum of Points and Authorities. Signed by Judge Thelton E. Henderson on 04/23/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/24/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 13-02114 TEH (PR)

KENNETH GIBBS,

ORDER DENYING WITHOUT PREJUDICE
MOTION TO DISMISS; SCHEDULING
AMENDED COMPLAINT

Plaintiff,
v.

(Doc. ## 23, 38)

T. FARLEY, et al.,
Defendants.

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Plaintiff Kenneth Gibbs, a state prisoner presently

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incarcerated at California State Prison–Sacramento, filed the

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present pro se prisoner complaint under 42 U.S.C. § 1983 regarding

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incidents that took place at Pelican Bay State Prison (PBSP), where

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he was previously incarcerated.

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and found Plaintiff had stated an Eighth Amendment excessive force

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claim.

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at PBSP.

The Court screened the complaint

The Court ordered the complaint served on four defendants

Defendants have filed a motion to dismiss the case on the

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grounds that Plaintiff has not exhausted his administrative

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remedies.

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Plaintiff has filed an opposition and Defendants have

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filed a reply.

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a supplemental complaint.

Plaintiff has also filed a motion for leave to file

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The Prison Litigation Reform Act of 1995 (PLRA) amended 42

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U.S.C. § 1997e to provide that “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other

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Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are

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available are exhausted.”

42 U.S.C. § 1997e(a).

Under this

United States District Court
For the Northern District of California

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section, an action must be dismissed unless the prisoner exhausted

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his available administrative remedies before he filed suit.

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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).

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See

The State of California provides its prisoners the right

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to appeal administratively “any policy, decision, action,

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condition, or omission by the [CDCR] or its staff that the inmate .

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. . can demonstrate as having a material adverse effect upon his or

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her health, safety, or welfare.”

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to exhaust available administrative remedies within this system, a

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prisoner must proceed through several levels of appeal:

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(1) informal review, submitted on a CDC 602 inmate appeal form;

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(2) first formal level appeal, to an institution appeals

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coordinator;(3) second formal level appeal, to the institution

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warden; and (4) third formal level appeal, to the Director of the

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CDCR.

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1264-65 (9th Cir. 2009).

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level of review satisfies the exhaustion requirement under §

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1997e(a).

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15 C.C.R. § 3084.1(a).

In order

See 15 C.C.R. § 3084.7; Brodheim v. Cry, 584 F.3d 1262,
A final decision from the Director's

Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010).
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In Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003),

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the Ninth Circuit held that a failure to exhaust under § 1997e(a)

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should be raised by a defendant as an “unenumerated Rule 12(b)

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motion.”

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dismiss under the non-enumerated portion of Federal Rule of Civil

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Procedure 12(b) and provided Plaintiff with the appropriate notice

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pursuant to Wyatt, 315 F.3d at 1120, n.14 and Woods v. Carey, 684

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F.3d 934, 940 n.6 (9th Cir. 2012).

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F.3d ----, 2014 WL 1317141 (9th Cir. Apr. 3, 2014), the Ninth

Pursuant to Wyatt, Defendants here filed their motion to

However, in Albino v. Baca, ---

United States District Court
For the Northern District of California

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Circuit recently overruled Wyatt in part and held that a motion for

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summary judgment is the appropriate procedural device for pretrial

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determination of whether administrative remedies have been

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exhausted.

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defendant may raise the issue of exhaustion in either (1) a motion

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to dismiss pursuant to Rule 12(b)(6), in the rare event the failure

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to exhaust is clear on the face of the complaint, or (2) a motion

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for summary judgment.

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under Rule 12(b) is not the appropriate procedural device for

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pretrial determination of whether administrative remedies have been

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exhausted.”

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Albino, at *4.

Following the decision in Albino, a

Id. at *4-5.

“[A]n unenumerated motion

Id. at *4.

Accordingly, Defendants’ motion to dismiss is DENIED

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without prejudice to renewing their arguments in support of

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dismissal by way of a motion for summary judgment as set forth in

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Albino.

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II
The Court is mindful that Plaintiff concedes that he did

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not exhaust administrative remedies until after filing this action.

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Specifically, Plaintiff states in his declaration in support of his

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opposition to Defendants’ motion to dismiss: “I feared filing a

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grievance prior to this suit for fear of retaliation and being

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screened out; I have since exhausted these issues.”

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(Dkt. #37), at ¶¶ 15-16.)

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showing that the Director’s level appeal decision issued on October

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1, 2013 – almost six months after Plaintiff filed this action.

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(See Defs.’ Reply (Dkt. #45), Ex. C.)

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(See Pl. Decl.

Defendants’ have also submitted evidence

Prior to Albino, failure to exhaust before filing suit

United States District Court
For the Northern District of California

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would subject the action to dismissal without prejudice to filing a

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new action once plaintiff had exhausted the prison grievance

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process.

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dismissed without prejudice unless prisoner exhausted available

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administrative remedies before he filed suit, even if prisoner

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fully exhausts while the suit is pending).

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proper procedure is unclear.

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See McKinney, 311 F.3d at 1199-1201 (action must be

Following Albino, the

The Court need not determine the proper procedure here

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because, as discussed above, Defendants have not filed a motion for

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summary judgment pursuant to Albino.

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holds that a prisoner may satisfy the exhaustion requirement as

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long as he exhausted his administrative remedies prior to filing an

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amended complaint.

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(9th Cir. 2010) (amended complaint raised new claims which arose

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after the original complaint was filed); Cano v. Taylor, 739 F.3d

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1214, 1220-21 (9th Cir. 2014) (amended complaint raised new claims

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which arose prior to the filing of the initial complaint).

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noted above, Plaintiff has filed a motion for leave to file a

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Further, recent case law

See Rhodes v. Robinson, 621 F.3d 1002, 1006

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As

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supplemental complaint.

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to supplement his complaint to add “[e]vents [that] have occurred

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since Plaintiff filed his complaint which are similar in nature to

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the violations alleged in the complaint.”

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In his motion, Plaintiff states he seeks

(Dkt. 38 at 1.)

In light of Rhodes and Cano, rather than file a

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supplemental complaint, the Court will grant Plaintiff leave to

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file an amended complaint, which may include the claims found

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cognizable in his original complaint as well as the claims he seeks

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to add by way of his proposed supplemental complaint.

Plaintiff is

United States District Court
For the Northern District of California

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cautioned that the amended complaint may only include claims that

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have been fully exhausted through the highest level of appeal

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available to him.

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Court will screen it pursuant to 28 U.S.C. § 1915A.

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Once the amended complaint is received, the

III

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In light of the foregoing, the Court orders as follows:

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1.

Plaintiff must file his amended complaint pursuant to

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the instructions above, within twenty-eight (28) days of the date

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of this Order.

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case number used in this order (13-2114 TEH (PR)) and the words

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AMENDED COMPLAINT on the first page.

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complaint within the designated time and in accordance with this

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Order will result in dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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2.

The pleading must include the caption and civil

Failure to file an amended

Plaintiff is advised that an amended complaint

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supersedes the original complaint.

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causes of action alleged in the original complaint which are not

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alleged in the amended complaint.”

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“[A] plaintiff waives all

London v. Coopers & Lybrand,

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644 F.2d 811, 814 (9th Cir. 1981).

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amended complaint are no longer defendants.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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3.

Defendants not named in an
See Ferdik v.

Defendants’ unenumerated motion to dismiss under Rule

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12(b) is DENIED.

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motion for summary judgment after the Court has screened

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Plaintiff’s amended complaint.

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United States District Court
For the Northern District of California

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4.

The denial is without prejudice to refiling as a

Plaintiff’s motion for leave to file a supplemental

complaint is DENIED as moot.
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The Clerk of the Court is directed to send Plaintiff

a blank civil rights form along with his copy of this Order.
This Order terminates docket numbers 23 and 38.

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IT IS SO ORDERED.
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Dated: 04/23/2014
THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE

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