Valley v. Martin et al

Filing 21

ORDER by Judge Haywood S. Gilliam, Jr. DENYING WITHOUT PREJUDICE 16 MOTION TO DISMISS. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 6/24/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID G. VALLEY, Plaintiff, 8 9 10 v. ORDER DENYING WITHOUT PREJUDICE MOTION TO DISMISS Re: Dkt. No. 16 BRIAN L MARTIN, et al., Defendants. 11 United States District Court Northern District of California Case No. 16-cv-00870-HSG (PR) 12 13 Plaintiff David G. Valley filed a pro se civil rights action under 42 U.S.C. § 1983 14 complaining of conditions at Lake County Jail, where he was previously housed as a pretrial 15 detainee. Defendants have filed a motion to dismiss the complaint under Federal Rule of Civil 16 Procedure 12(b)(6) for failure to exhaust administrative remedies. 17 The Ninth Circuit recently overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 18 2003), which held that failure to exhaust available administrative remedies under the Prison 19 Litigation Reform Act, 42 U.S.C. § 1997e(a) (PLRA), should be raised by a defendant as an 20 unenumerated Rule 12(b) motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “[A] 21 failure to exhaust is more appropriately handled under the framework of the existing rules than 22 under an ‘unenumerated’ (that is, non-existent) rule.” Id. 23 Under the new law of the circuit, in the rare event that a failure to exhaust is clear on the 24 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Id. Otherwise, 25 defendants must produce evidence proving failure to exhaust in a motion for summary judgment 26 under Rule 56. Id. Defendants must present probative evidence that there was an available 27 administrative remedy and that the prisoner did not exhaust that available administrative remedy. 28 Id. at 1172. 1 Defendants argue here that “a Rule 12(b)(6) motion is appropriate because plaintiff 2 attached grievances to the Complaint which show failure to exhaust on the face of the Complaint.” 3 Dkt. No. 16 at 5, n.2. Not so. Plaintiff states in his complaint that he presented the facts in his 4 complaint for review through the Lake County Jail grievance procedure and that the last level to 5 which he appealed was the highest level of appeal available to him. Dkt. No. 1 at 1-2. Further, 6 nowhere in the complaint does he represent that the attachments thereto contain the full record of 7 his efforts to exhaust administrative remedies. 8 9 In view of Albino, defendants’ motion (dkt. no. 16) to dismiss plaintiff’s instant prisoner action under Rule 12(b)(6) for failure to exhaust available administrative remedies, as required by the PLRA, is DENIED. The denial is without prejudice to defendants renewing their failure to 11 United States District Court Northern District of California 10 exhaust defense in a motion for summary judgment, if appropriate. 12 In order to expedite these proceedings, defendants must serve and file a motion for 13 summary judgment (whether or not they choose to raise a failure to exhaust defense) within 60 14 days of this order. Plaintiff must serve and file an opposition or statement of non-opposition to 15 the motion not more than 28 days after the motion is served and filed, and defendants must serve 16 and file a reply to an opposition not more than 14 days after the opposition is served and filed. At 17 that point, the motion will be fully briefed. 18 This order terminates Docket No. 16. 19 IT IS SO ORDERED. 20 Dated: 6/24/2016 21 22 HAYWOOD S. GILLIAM, JR. United States District Judge 23 24 25 26 27 28 2

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