# (PC) Johnson v. PTS of America > District Court, E.D. California · April 13, 2020 URL: https://www.frixlaw.com/law-library/cases/10018384 ## Case - **Court:** District Court, E.D. California - **Decided:** April 13, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10018384 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JACK JOHNSON III, Case No. 1:18-cv-0434-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANT PTS OF AMERICA, 13 v. LLC’S MOTION TO DISMISS 14 PTS OF AMERICA, LLC, et al., (Doc. 25) 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 Plaintiff proceeds in this civil rights action pursuant to 42 U.S.C. § 1983, against 18 defendants Melvin Moore, Elinore Sawyer, John Doe, and PTS of America, LLC (“PTSA”) on 19 claims that arose while he was a pretrial detainee. Relevant here, plaintiff brings a Fourteenth 20 Amendment conditions of confinement claim and state law claims for negligence and intentional 21 infliction of emotional distress against PTSA. This defendant now moves to dismiss all claims 22 asserted against it pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that 23 plaintiff failed to allege in the pleading that he exhausted his administrative remedies prior to 24 filing suit. For the reasons set forth below, the Court will recommend that this motion be denied. 25 Under the Prisoner Litigation Reform Act, a prisoner must exhaust “available” 26 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden 27 v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th 28 Cir. 2005). The prisoner must complete the administrative review process in accordance with the 1 applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required for all 2 suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief 3 offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 4 The “failure to exhaust is an affirmative defense under the PLRA, ... inmates are not 5 required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 6 U.S. 199, 216 (2007). In a limited number of cases, the failure to exhaust may be clear from the 7 face of the complaint; however, “such cases will be rare because a plaintiff is not required to say 8 anything about exhaustion in his complaint.” Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 9 2014); see Jones v. Bock, 549 U.S. 199, 216 (2007) (failure to exhaust is an affirmative defense 10 and a prisoner is not required to plead or demonstrate exhaustion in the complaint). In the rare 11 case where failure to exhaust is clear from the face of the complaint, the defendant may move to 12 dismiss under Rule 12(b)(6). Albino, 747 F.3d at 1169. 13 To properly be considered on a Rule 12(b)(6) motion, the nonexhaustion defense must 14 raise no disputed issues of fact. See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) 15 (affirmative defense may be raised by motion to dismiss only if “the defense raises no disputed 16 issues of fact”). Typically, to show that a prisoner has failed to exhaust remedies, a defendant will 17 have to present probative evidence on a motion for summary judgment under Rule 56. Albino, 18 747 F.3d at 1169. 19 PTSA does not argue in its moving papers that plaintiff failed to exhaust his 20 administrative remedies prior to filing this action.1 Indeed, it asserts that it has “not yet been able 21 to obtain Plaintiff’s records to determine whether he has even begun the administrative appeal 22 process, let alone exhausted it.” Mot. to Dism. 5. In addition, the Court cannot conclude from the 23 face of the complaint that administrative remedies were made available to plaintiff and that he 24 failed to exhaust those remedies. Instead, PTSA’s request for dismissal is premised solely on 25 plaintiff’s failure to affirmatively plead exhaustion. Because plaintiff is under no obligation to 26 27 1 PTSA’s Reply seizes on language in plaintiff’s Opposition suggesting that plaintiff did not submit an inmate 28 grievance with the Nevada Department of Corrections on his claim against the PTSA. Even if true, the instant motion 1 “specially plead or demonstrate exhaustion2” in his complaint, this is not a proper ground for 2 dismissal. See Jones, 549 U.S. at 216. Accordingly, the Court RECOMMENDS that defendant 3 PTSA’s motion to dismiss (Doc. 25) be DENIED. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 6 fourteen days after being served with these Findings and Recommendations, the parties may file 7 written objections with the Court. The document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 9 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 10 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. 12 13 Dated: April 12, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PTSA may be confusing the requirements of the PLRA with the pleading requirements of California’s Government --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10018384. Public record. Not legal advice.