Mwanza v. Naphcare, Inc. et al

Filing 32

ORDER Granting 18 Motion to Dismiss Defendants Patricia Oliver and Cornelius Henderson and Denying 30 Motion to Amend/Correct Response to Motion to Dismiss. Signed by Judge Kent J. Dawson on 2/2/12. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TACUMA MWANZA,

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Plaintiff,

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v.

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NAPHCARE, INC., et al.,

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Case No. 2:11-CV-00471-KJD-CWH

Defendants.

ORDER

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Before the Court is the Motion to Dismiss (#18) of Defendants Patricia Oliver (“Oliver”) and

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Cornelius Henderson (“Henderson”). Plaintiff filed an Opposition (#23) and Defendants Oliver and

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Henderson (collectively “Defendants”) filed a Reply (#25).

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Also before the Court is Plaintiff’s Motion to Amend Response to Motion to Dismiss (#30)

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and Defendants’ Opposition to the Motion to Amend (#31).

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I. Background

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Plaintiff alleges that on February 10, 2010, five boils appeared under his right armpit where

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he had previously been treated for boils related to a spider bite a few months before. (Complaint at

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3.) Plaintiff alleges that Oliver refused to give him pain medication and treatment and told him to

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submit a third medical kite for the condition. He claims that Oliver returned his medical kite on

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February 15, 2011, and told him that he was required to pay an $8.00 fee to be seen by the medical

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professionals. (Id. at 4.) Plaintiff also alleges that on February 16, 2011 he submitted another kite

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requesting a yearly medical checkup. According to Plaintiff, the next day, this kite was returned by

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Henderson, who instructed him on how to care for his injury, but did not treat him for the condition.

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Plaintiff alleges that he is still suffering from the medical condition.

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Plaintiff filed his original complaint on March 29, 2011 and filed an Amended Complaint

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(#8) on April 26, 2011. The Amended Complaint alleges violation of Plaintiff’s Eighth Amendment

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Rights and that Defendants were deliberately indifferent and negligent when they failed to provide

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medical care between February 10 and February 17, 2011.

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II. Discussion

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A. Legal Standard

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the

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context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal

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evaluation illustrates a two prong analysis. First, the Court identifies “the allegations in the

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complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal

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conclusions, bare assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the

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factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the

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allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950.

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Plaintiff is representing himself pro se. Courts must liberally construe the pleadings of pro se

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parties. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990). However, “pro se

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litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of

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record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986).

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B. Failure to Exhaust Administrative Remedies

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The Prison Litigation Reform Act of 1996 (“PLRA”) provides that “[n]o action shall be

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brought with respect to prison conditions under § 1983 of this title, or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies

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as are available are exhausted.” 42 U.S.C. § 1997e(a) (2002). Failure to exhaust administrative

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remedies is an affirmative defense and the defendants bear the burden of raising and proving failure

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to exhaust. Jones v. Bock, 549 U.S. 199, 212-14 (2007). Proper exhaustion requires that the

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plaintiff utilize all steps made available by the agency and comply with the agency’s deadlines and

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other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-90 (2006). Proper exhaustion must be

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completed before a complaint may be filed. Id. at 83-84. See Roberts v. Klein, 770 F. Supp. 2d

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1102 (D. Nev. 2011). A nonexhaustion defense should be raised in an unenumerated Rule 12(b)

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motion rather than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

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Cir.2003).

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Defendants argue that Plaintiff failed to comply with the applicable grievance procedure and

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did not exhaust his administrative remedies. Plaintiff argues that he was unaware of the procedure

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articulated by Defendants and that Defendants do not offer any evidence that the procedure was in

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effect at the time of Plaintiff alleged injury. Even if Plaintiff was correct that the policy came into

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place later, he still does not aver that he exhausted his administrative remedies under the policy

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which existed at the time of his injury. The Civil Rights Complaint form used by Plaintiff to state

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his claims for relief specifically asks:

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3) Have you attempted to resolve the dispute stated in this action by seeking relief
from the proper administrative officials, e.g., have you exhausted available
administrative grievance procedures? ___ Yes ___ No. If your answer is “No”,
did you not attempt administrative relief because the dispute involved the validity
of a: (1) ___ disciplinary hearing; (2) ___ state or federal court decision; (3) ___
state or federal law or regulation; (4) ___ parole board decision; or (5) ___ other:
________________. If your answer is “Yes”, provide the following information.
Grievance Number ____________.
Date and institution where grievance was filed_________________________.
Response to grievance: ____________________________________________.

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Plaintiff wrote “N/A” across the face of this question. Plaintiff’s Amended Complaint lacks any

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facts showing the required exhaustion of his administrative remedies. Accordingly, the facts alleged

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in the Amended Complaint are insufficient to sustain a cause of action and the Motion to Dismiss is

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granted.

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C. Motion to Amend

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Fed. R. Civ. P. 15(a)(2) instructs courts to give leave to amend pleadings “when justice so

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requires.” Plaintiff seeks to amend to his Opposition to the Motion to Dismiss by submitting

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additional affidavits and argument that his complaint should survive, notwithstanding his failure to

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plead exhaustion of his administrative remedies. Specifically, Plaintiff seeks leave to argue that he

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was not aware of the grievance procedure and claims that Defendants were obligated to show that he

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was notified of the grievance procedure.

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The Ninth Circuit has never held that prison officials are obligated to show that a plaintiff

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was made aware of the grievance procedure prior to raising a failure to exhaust defense. To the

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contrary, several district courts in the Ninth Circuit have adopted the holding of other circuits that

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“neither a lack of awareness of available grievance procedures nor a prison’s failure to inform an

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inmate of them excuses his failure to exhaust.” Dillard v. Pierce County, 2011 WL 2530971, 3

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(W.D.Wash. 2011); see also Gonzalez v. Penrod, 2009 WL 980782, *3 (C.D.Cal.2009); Albino v.

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Baca, 2010 WL 883856, *4. Plaintiff does not offer facts showing that he exhausted his

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administrative remedies in accordance with the PLRA. Amendment of the Opposition to the Motion

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to Dismiss would be futile because Plaintiff’s argument that he was unaware of the procedure is

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unavailing.

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III. Conclusion
IT IS HEREBY ORDERED THAT the Motion to Dismiss (#18) of Defendants Patricia
Oliver and Cornelius Henderson is GRANTED.
IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Amend Response to Motion to
Dismiss (#30) is DENIED.
DATED this 2nd day of February 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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