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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California 10 11 12 13 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. 14 / 15 16 17 Plaintiff Kenneth Gibbs, a state prisoner presently 18 incarcerated at California State Prison–Sacramento, filed the 19 present pro se prisoner complaint under 42 U.S.C. § 1983 regarding 20 incidents that took place at Pelican Bay State Prison (PBSP), where 21 he was previously incarcerated. 22 and found Plaintiff had stated an Eighth Amendment excessive force 23 claim. 24 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 25 26 grounds that Plaintiff has not exhausted his administrative 27 remedies. 28 Plaintiff has filed an opposition and Defendants have 1 filed a reply. 2 a supplemental complaint. Plaintiff has also filed a motion for leave to file 3 I 4 The Prison Litigation Reform Act of 1995 (PLRA) amended 42 5 U.S.C. § 1997e to provide that “[n]o action shall be brought with 6 respect to prison conditions under [42 U.S.C. § 1983], or any other 7 Federal law, by a prisoner confined in any jail, prison, or other 8 correctional facility until such administrative remedies as are 9 available are exhausted.” 42 U.S.C. § 1997e(a). Under this United States District Court For the Northern District of California 10 section, an action must be dismissed unless the prisoner exhausted 11 his available administrative remedies before he filed suit. 12 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 13 See The State of California provides its prisoners the right 14 to appeal administratively “any policy, decision, action, 15 condition, or omission by the [CDCR] or its staff that the inmate . 16 . . can demonstrate as having a material adverse effect upon his or 17 her health, safety, or welfare.” 18 to exhaust available administrative remedies within this system, a 19 prisoner must proceed through several levels of appeal: 20 (1) informal review, submitted on a CDC 602 inmate appeal form; 21 (2) first formal level appeal, to an institution appeals 22 coordinator;(3) second formal level appeal, to the institution 23 warden; and (4) third formal level appeal, to the Director of the 24 CDCR. 25 1264-65 (9th Cir. 2009). 26 level of review satisfies the exhaustion requirement under § 27 1997e(a). 28 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). 2 1 In Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003), 2 the Ninth Circuit held that a failure to exhaust under § 1997e(a) 3 should be raised by a defendant as an “unenumerated Rule 12(b) 4 motion.” 5 dismiss under the non-enumerated portion of Federal Rule of Civil 6 Procedure 12(b) and provided Plaintiff with the appropriate notice 7 pursuant to Wyatt, 315 F.3d at 1120, n.14 and Woods v. Carey, 684 8 F.3d 934, 940 n.6 (9th Cir. 2012). 9 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 10 Circuit recently overruled Wyatt in part and held that a motion for 11 summary judgment is the appropriate procedural device for pretrial 12 determination of whether administrative remedies have been 13 exhausted. 14 defendant may raise the issue of exhaustion in either (1) a motion 15 to dismiss pursuant to Rule 12(b)(6), in the rare event the failure 16 to exhaust is clear on the face of the complaint, or (2) a motion 17 for summary judgment. 18 under Rule 12(b) is not the appropriate procedural device for 19 pretrial determination of whether administrative remedies have been 20 exhausted.” 21 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 22 without prejudice to renewing their arguments in support of 23 dismissal by way of a motion for summary judgment as set forth in 24 Albino. 25 26 II The Court is mindful that Plaintiff concedes that he did 27 not exhaust administrative remedies until after filing this action. 28 3 1 Specifically, Plaintiff states in his declaration in support of his 2 opposition to Defendants’ motion to dismiss: “I feared filing a 3 grievance prior to this suit for fear of retaliation and being 4 screened out; I have since exhausted these issues.” 5 (Dkt. #37), at ¶¶ 15-16.) 6 showing that the Director’s level appeal decision issued on October 7 1, 2013 – almost six months after Plaintiff filed this action. 8 (See Defs.’ Reply (Dkt. #45), Ex. C.) 9 (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 10 would subject the action to dismissal without prejudice to filing a 11 new action once plaintiff had exhausted the prison grievance 12 process. 13 dismissed without prejudice unless prisoner exhausted available 14 administrative remedies before he filed suit, even if prisoner 15 fully exhausts while the suit is pending). 16 proper procedure is unclear. 17 See McKinney, 311 F.3d at 1199-1201 (action must be Following Albino, the The Court need not determine the proper procedure here 18 because, as discussed above, Defendants have not filed a motion for 19 summary judgment pursuant to Albino. 20 holds that a prisoner may satisfy the exhaustion requirement as 21 long as he exhausted his administrative remedies prior to filing an 22 amended complaint. 23 (9th Cir. 2010) (amended complaint raised new claims which arose 24 after the original complaint was filed); Cano v. Taylor, 739 F.3d 25 1214, 1220-21 (9th Cir. 2014) (amended complaint raised new claims 26 which arose prior to the filing of the initial complaint). 27 noted above, Plaintiff has filed a motion for leave to file a 28 Further, recent case law See Rhodes v. Robinson, 621 F.3d 1002, 1006 4 As 1 supplemental complaint. 2 to supplement his complaint to add “[e]vents [that] have occurred 3 since Plaintiff filed his complaint which are similar in nature to 4 the violations alleged in the complaint.” 5 In his motion, Plaintiff states he seeks (Dkt. 38 at 1.) In light of Rhodes and Cano, rather than file a 6 supplemental complaint, the Court will grant Plaintiff leave to 7 file an amended complaint, which may include the claims found 8 cognizable in his original complaint as well as the claims he seeks 9 to add by way of his proposed supplemental complaint. Plaintiff is United States District Court For the Northern District of California 10 cautioned that the amended complaint may only include claims that 11 have been fully exhausted through the highest level of appeal 12 available to him. 13 Court will screen it pursuant to 28 U.S.C. § 1915A. 14 Once the amended complaint is received, the III 15 In light of the foregoing, the Court orders as follows: 16 1. Plaintiff must file his amended complaint pursuant to 17 the instructions above, within twenty-eight (28) days of the date 18 of this Order. 19 case number used in this order (13-2114 TEH (PR)) and the words 20 AMENDED COMPLAINT on the first page. 21 complaint within the designated time and in accordance with this 22 Order will result in dismissal of this action for failure to 23 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 24 2. The pleading must include the caption and civil Failure to file an amended Plaintiff is advised that an amended complaint 25 supersedes the original complaint. 26 causes of action alleged in the original complaint which are not 27 alleged in the amended complaint.” 28 5 “[A] plaintiff waives all London v. Coopers & Lybrand, 1 644 F.2d 811, 814 (9th Cir. 1981). 2 amended complaint are no longer defendants. 3 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 4 3. Defendants not named in an See Ferdik v. Defendants’ unenumerated motion to dismiss under Rule 5 12(b) is DENIED. 6 motion for summary judgment after the Court has screened 7 Plaintiff’s amended complaint. 8 9 United States District Court For the Northern District of California 10 11 12 4. The denial is without prejudice to refiling as a Plaintiff’s motion for leave to file a supplemental complaint is DENIED as moot. 5. 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. 13 14 IT IS SO ORDERED. 15 16 Dated: 04/23/2014 THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 G:\PRO-SE\TEH\CR.13\Gibbs 13-2114 MTD.wpd 26 27 28 6

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