Martinez v. Peters et al

Filing 111

OPINION & ORDER: Martinez shall have until 9/2/2014, to file a response to the moving defendants' constructive motion 91 , the moving defendants shall have until 9/16/2014, to file an optional reply in support of their constructive m otion 91 , and Martinez' motion 55 for partial summary judgment (styled as a motion for summary judgment) and the moving defendants' cross-motion 72 for partial summary judgment (styled as a motion for summary judgment) are Stricken from the Under Advisement Calendar of 6/17/2014, and will likewise be taken under advisement as of 9/17/2014. Signed on 7/1/14 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LEONEL 0. MARTINEZ,
Plaintiff,
6: 13-CV-384-PK

v.

OPINION AND
ORDER

COLETTE S. PETERS, JEFF PREMO, M.
YODER, S.T.M. LT. YANCEY, S.T.M. LT.
OFFORD, STEVE FRANKE, LT.
STEPHENSON,
Defendants:
PAPAK, Magistrate Judge:
Incarcerated plaintiff prose Leone! 0. Martinez filed this putative class action lawsuit in

forma pauperis against defendants Colette S. Peters, Jeff Premo, M. Yoder, S.T.M. Lt. Yancey,
S.T.M. Lt. Offord, and Steve Franke on March 6, 2013. On March 22, 2013, I denied Martinez'
motion for class certification, on May 29, 2013, Mmiinez moved for review of my order by a
United States District Judge, and on October 7, 2013, Judge Brown affirmed my order. On
November 12,2013, Martinez supplemented his pleading, adding Lt. Stephenson as an additional

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defendant and stating one further claim for relief in addition to the claim stated in his originally
filed pleading. By and through his original and supplemental pleadings (collectively, Martinez'
"complaint"), Martinez appears to allege the defendants' liability under 42 U.S. C.§ 1983 for the
violation of his due process rights under the Eighth and/or Fourteenth Amendments to the United
States Constitution, in two separate claims. This court has subject-matter jurisdiction over
Martinez' claims pursuant to 28 U.S.C. § 1331.
On December 16, 2013, defendants Peters, Premo, Yoder, Yancey, Ufford, and Franke
(collectively, the "moving defendants") filed an unenumerated Federal Civil Procedure Rule
12(b) motion (#91) to dismiss the claim set forth in Martinez' supplemental pleading for failure
to exhaust administrative remedies.' On April 3, 2014, while the moving defendants'

1

Under the Prison Litigation Reform Act ("PLRA"), incarcerated plaintiffs are required
to exhaust all administrative remedies available to them within the institutions in which they are
housed before bringing any federal action in connection with prison conditions, including such
actions brought under 42 U.S. C.§ 1983:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other conectional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a). For purposes of the PLRA, actions brought with respect to "prison
conditions" include all actions brought to challenge isolated episodes of unconstitutional or
otherwise unlawful misconduct of any kind as well as prisoner petitions challenging conditions
of confinement. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Under the PLRA, the courts
lack discretion to consider claims challenging prison conditions, including claims for money
damages, except where such claims are filed following complete exhaustion of available
administrative remedies, without regard to the nature of the available administrative remedies
and without regard to the types of remedies available under such administrative grievance
procedures. See id at 524, citing Booth v. Churner, 532 U.S. 731,739,740 n. 5, 741 (2001).
Inmates are not required to plead or demonstrate exhaustion before bringing prison-conditions
lawsuits. Jones v. Bock, 549 U.S. 199,216 (2007). To the contrmy, an incarcerated plaintiff's
failure to satisfy the PLRA exhaustion requirement is an affirmative defense that is the burden of
the defendant(s) in a prison-conditions lawsuit to raise and prove. See id
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unenumerated Rule 12(b) motion was still pending before this court, the Ninth Circuit issued its
opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), by and through which the couti held
and reasoned in relevant pmi as follows:
[A]!though it may be more a matter of a change of nomenclature than of practical
operation, we ovenule Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), in
which we held that a failure to exhaust under§ 1997e(a) should be raised by a
defendant as an "unenumerated Rule 12(b) motion." We conclude that a failure to
exhaust is more appropriately handled under the framework of the existing rules
than under an "unenumerated" (that is, non-existent) rule. Failure to exhaust
under the PLRA is "an affinnative defense the defendant must plead and prove."
Jones v. Bock, 549 U.S. 199, 204,216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).
In the rare event that a failure to exhaust is clear on the face of the complaint, a
defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants
must produce evidence proving failure to exhaust in order to cany their burden. If
undisputed evidence viewed in the light most favorable to the prisoner shows a
failure to exhaust, a defendant is entitled to summmy judgment under Rule 56. If
material facts are disputed, summmy judgment should be denied, and the district
judge rather than a jmy should detetmine the facts.
Albino, 747 F.3d at 1166.

Here, the moving defendants neither rely upon evidence proving failure to exhaust nor
expressly asseti or argue that Mmiinez' purpmied failure to exhaust is clear on the face of
Martinez' supplemental pleading, but rather simply assert that Mmiinez has not exhausted
available administrative remedies in the body of their suppotiing legal memorandum. Analysis
of Martinez' supplemental pleading suggests that the moving defendants may intend to take the
implicit position that failure to exhaust may be fairly inferred from Martinez' allegations, in that
the events referred to in Martinez' supplemental pleading take place after the inception of this
action, such that Martinez cannot have exhausted administrative remedies as to those events prior
to initiating this lawsuit.
I mn reluctant to draw any such inference on the current state of the record. By and
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through his supplemental pleading, Martinez appears to allege the imposition of retaliatmy
sanctions against him by the defendants, and it is possible that on a complete evidentimy record
the conclusion that ordinaty grievance procedures were, in consequence of defendants' alleged
retaliatmy conduct, objectively not available to Mattinez. See Hemphill v. New York, 380 F.3d
680, 688 (2nd Cir. 2004).
Accordingly, I construe the moving defendants' unenumerated Rule 12(b) motion (#91) to
dismiss as a motion for partial summmy judgment. Defendants are directed to file evidence in
supp01t of their motion so construed, in the event they deem it appropriate to do so, by not later
than July 31,2014, at which time the clerk ofcomt is directed to issue a Summmy Judgment
Advice Order to Martinez. Mmtinez shall have until September 2, 2014, to file a response to the
moving defendants' constructive motion, including any suppmting evidence, and the moving
defendants shall have until September 16, 2014, to file an optional reply. The constructive
motion (#91) will be taken under advisement as of September 17, 2014. Mmtinez' motion (#55)
for partial summary judgment (styled as a motion for summary judgment) and the moving
'

defendants' cross-motion (#72) for partial summaty judgment (styled as a motion for summary
judgment) are stricken from the Under Advisement calendar of June 17, 2014, and will likewise
be taken under advisement as of September 17,2014.
CONCLUSION

The moving defendants' unenumerated Rule 12(b) motion (#91) to dismiss for failure to
exhaust administrative remedies is construed as a motion for pmtial summmy judgment,
defendants may file evidence in support of that motion (#91) by not later than July 31,2014, at
which time the clerk of court is directed to issue a Summary Judgment Advice Order to Martinez,
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Martinez shall have until September 2, 2014, to file a response to the moving defendants'
constructive motion (#91), the moving defendants shall have until September 16,2014, to file an
optional replyin support of their constructive motion (#91), and Martinez' motion (#55) for
partial summmy judgment (styled as a motion for summmy judgment) and the moving
defendants' cross-motion (#72) for partial summmy judgment (styled as a motion for summmy
judgment) are stricken from the Under Advisement calendm· of June 17,2014, and will likewise
be taken under advisement as of September 17, 2014.

Dated this 1st day of July, 2014.

onorable Paul Papak
United States Magistrate Judge

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