explaining that although a court may take judicial 23 notice of matters of public record, it “may not, on the basis of evidence outside of the Complaint, 24 take judicial notice of facts favorable to Defendants that could reasonably be disputed”
How later courts described this case
- explaining that although a court may take judicial 23 notice of matters of public record, it “may not, on the basis of evidence outside of the Complaint, 24 take judicial notice of facts favorable to Defendants that could reasonably be disputed”
- Courts may “consider unattached evidence on which the complaint ‘necessarily 13 relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's 14 claim; and (3) no party questions the authenticity of the document.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 SEAN JEFFREY RICHSON-BEY, Case No. 1:21-cv-01294-AWI-SAB (PC)
11 Plaintiff,
FINDINGS AND RECOMMENDATIONS
12 v. REGARDING DEFENDANTS’ MOTION TO
DISMISS
13 R. MORENO, et al.,
(ECF No. 28)
14 Defendants.
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17 Plaintiff Sean Jeffrey Richson-Bey is proceeding pro se and in forma pauperis in this civil
18 rights action filed pursuant to 42 U.S.C. § 1983.
19 Currently before the Court is Defendants’ motion to dismiss, filed November 18, 2022.
20 I.
21 PROCEDURAL BACKGROUND
22 This action is proceeding against Defendant Moreno for retaliation and against Defendant
23 Saucedo for a due process violation.
24 As previously stated, on November 18, 2022, Defendants filed the instant motion to
25 dismiss. (ECF No. 28.) Plaintiff filed an opposition on December 5, 2022, and Defendants filed
26 a reply on December 19, 2022. (ECF Nos. 29, 30.)
27 ///
///
1 II.
2 DISCUSSION
3 A. Legal Standard
4 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a
5 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of
6 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d
7 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6)
8 motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. National
9 Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.
10 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
11 To survive a motion to dismiss, a complaint must contain sufficient factual matter,
12 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
13 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
14 omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969
15 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable
16 inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at
17 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
18 Pro se litigants are entitled to have their pleadings liberally construed and to have any
19 doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison
20 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th
21 Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
22 B. Allegations of Complaint
23 On August 4, 2019, Plaintiff filed an administrative complaint naming R. Moreno for
24 terminating a visit in progress without warning.
25 On August 5, 2019, Plaintiff received a “Notice of Visitor Termination,” indicating the
26 August 4, 2019 action by R. Villanueva Garcia for “excessive physical contact.”
27 ///
1 On August 12, 2019, Moreno was made aware of Plaintiff’s complaint during an
2 interview with sergeant F. Montoya. In retaliation, Moreno prepared a false rules violation
3 report for “sexual activity in a visiting room with an adult.”
4 On August 18, 2019, Plaintiff was found guilty of the lesser included offense by hearing
5 officer D. Saucedo. Saucedo prevent Plaintiff from presenting witnesses, video evidence, and
6 classified the violation as serious, assessing a thirty day loss of credit. Saucedo exceeded the
7 scope of the rules violation adjudication by improperly including certain evidence. Saucedo
8 denied witnesses and video evidence.
9 C. Defendants’ Motion to Dismiss
10 Defendants argue that Plaintiff’s official capacity claims against Defendants are barred
11 by the Eleventh Amendment because they are not persons under section 1983 in their official
12 capacity. Defendant Moreno also argues that Plaintiff’s claim against him is subject to dismissal
13 because it is clear on the face of the third amended complaint that he failed to exhaust the
14 administrative remedies.
15 1. Official Capacity Claims
16 The Eleventh Amendment bars § 1983 suits against a State unless the state has waived its
17 sovereign immunity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). The Eleventh
18 Amendment bars suits seeking money damages against state officials acting in their official
19 capacities. Id. at 71. In addition, individual states, their departments and agencies, and their
20 officials acting in their official capacities are not “persons” subject to suit under 42 U.S.C. §
21 1983, for damages. Id. However, suits against state officials in their official capacities seeking
22 injunctive relief are not treated as against the State and thus are not barred. Id. at 71 n.10.
23 Here, Plaintiff concedes in his opposition that dismissal of the official capacity claims
24 against Defendant Moreno and Saucedo is warranted under the Eleventh Amendment.
25 Accordingly, the official capacity claims against Defendants Moreno and Saucedo should be
26 dismissed as barred by the Eleventh Amendment.
27 ///
1 2. Exhaustion of Administrative Remedies as to Defendant Moreno
2 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such
3 administrative remedies as are available” before commencing a suit challenging prison
4 conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016)
5 (“An inmate need exhaust only such administrative remedies that are ‘available.’”). Exhaustion
6 is mandatory unless unavailable. “The obligation to exhaust ‘available’ remedies persists as long
7 as some remedy remains ‘available.’ Once that is no longer the case, then there are no ‘remedies
8 … available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422
9 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739
10 (2001)).
11 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter
12 v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by
13 the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. at 741, and
14 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing
15 Porter, 534 U.S. at 524).
16 The failure to exhaust is an affirmative defense, and the defendants bear the burden of
17 raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. at 216; Albino v. Baca,
18 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the
19 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino v.
20 Baca, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to
21 exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed
22 evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.
23 a. Request for Judicial Notice
24 Defendants request that the Court take judicial notice of the following public records and
25 exhibits attached to Plaintiff’s original complaint:
26 1. Exhibit 1: California Code of Regulations, Title 15, §§ 3048.2(a), 3084.7,
27 3084.7(d)(3), as operative on July 1, 2019.
1 05141, ECF No. 1 at 9-11.
2 3. Exhibit 3: A true and correct copy of the First Level Response to CSPC-19-05141,
3 ECF No. 1 at 21-23.
4 It is a “well-established doctrine that an amended pleading supersedes the original
5 pleading.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Here, Plaintiff's FAC
6 supersedes the Complaint, and the Complaint “no longer performs any function and is ‘treated
7 thereafter as non-existent.’ ” Id. (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).
8 “Generally, district courts may not consider material outside the pleadings when
9 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil
10 Procedure.” Khoja v. Orexigen Ther., Inc., 899 F.3d 988, 998 (9th Cir. 2018). When matters
11 outside the pleading are presented to and not excluded by the court, the Rule 12(b)(6) motion
12 becomes a motion for summary judgment. Id. (citing Fed. R. Civ. P. 12(d)). “There are two
13 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under Federal
14 Rule of Evidence 201.” Khoja, 899 F.3d at 998.
15 Federal Rule of Evidence 201 permits a court to take judicial notice of “a fact that is not
16 subject to reasonable dispute because it: (1) is generally known within the trial court's territorial
17 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
18 reasonably be questioned.” Fed. R. Evid. 201(b). A court may take judicial notice of court filings
19 and other matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
20 746 n.6 (9th Cir. 2006). “But a court cannot take judicial notice of disputed facts contained in
21 such public records.” Khoja, 899 F.3d at 999; accord United States ex rel. Lee v. Corinthian
22 Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (explaining that although a court may take judicial
23 notice of matters of public record, it “may not, on the basis of evidence outside of the Complaint,
24 take judicial notice of facts favorable to Defendants that could reasonably be disputed”).
25 Here, the Court may take judicial notice that the administrative grievance log number
26 CSPC-19-05141 and First Level Review Response thereto, but cannot take judicial notice of the
27 truth of the facts in these documents. See, e.g., Pinnacle Armor, Inc. v. United States, No. 1:07-
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(E.D. Cal. Nov. 4, 2013) (declining to take judicial notice of letters attached to original
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complaint and explaining that “they would only be judicially noticeable for the purpose of
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establishing that the documents were presented as attachments the Complaint”).
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The Court specifically will not take judicial notice of the fact for which administrative
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grievance log number CSPC-19-05141 and the First Level Review Response is cited—that
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Plaintiff failed to exhaust the administrative progress regarding the claim against Defendant
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Moreno because he did not appeal to the highest level of review available as it is disputed and is
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subject to “reasonable dispute.”
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A document “may be incorporated by reference into a complaint if the plaintiff refers
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extensively to the document or the document forms the basis of the plaintiff's
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claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Corinthian Colleges,
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655 F.3d at 999 (Courts may “consider unattached evidence on which the complaint ‘necessarily
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relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's
14
claim; and (3) no party questions the authenticity of the document.”). The Court declines to
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incorporate by reference administrative grievance log number CSPC-19-05141 and the First
16
Level Review Response, as it is not mentioned in the third amended complaint and does not form
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the basis of Plaintiff's claim. Indeed, this is not surprising because inmates, like Plaintiff, are not
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required to plead or prove exhaustion of the administrative remedies. Albino v. Baca, 747 F.3d
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at 1166.
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b. Merits of Motion
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Defendant Moreno argues that it is clear from the face of the third amended complaint
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and attachments to his original complaint that Plaintiff did not properly exhaust his retaliation
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claim.
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Here, in the third amended complaint, Plaintiff did not plead exhaustion of the
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administrative remedies, and although Plaintiff has filed some administrative grievances based
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on the attachments to the original complaint, it is not clear from the face of the third amended
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complaint that he failed to exhaust the administrative remedies with respect to his retaliation
1 claim against Defendant Moreno. Indeed, in opposition to Defendants’ motion to dismiss,
2 Plaintiff submits that he attempted to further exhaust his retaliation claim but the grievance was
3 improperly screened out. (ECF No. 29 at 3-4.) Because there is some ambiguity as to whether
4 Plaintiff adequately exhausted the administrative remedies, this is not one of the “rare” instances
5 in which the failure to exhaust is clear from the face of the complaint. Although Plaintiff
6 attached administrative grievance log number CSPC-19-05141 to his original complaint, the
7 Court cannot rule out the fact that there may be other appeals that could serve to exhaust the
8 administrative remedies. Plaintiff was not required to allege all facts relevant to his exhaustion
9 attempts on the face of his third amended complaint, nor is a motion to dismiss the appropriate
10 mechanism to challenge the sufficiency of the evidence. Exhaustion is an affirmative defense to
11 which a plaintiff is not required to plead. Without a full record of all of Plaintiff’s exhaustion
12 efforts, the Court cannot determine from the face of the third amended complaint that Plaintiff
13 failed to exhaust the administrative remedies with respect to his retaliation claim against
14 Defendant Moreno. Accordingly, Defendant Moreno’s motion to dismiss the retaliation claim
15 against him for failure to exhaust the administrative remedies should be denied.
16 II.
17 RECOMMENDATIONS
18 Based on the foregoing, it is HEREBY RECOMMENDED that:
19 1. Defendants’ motion to dismiss the official capacity claims be granted; and
20 2. Defendants’ motion to dismiss the retaliation claim against Defendant Moreno for
21 failure to exhaust the administrative remedies be denied.
22 These Findings and Recommendations will be submitted to the United States District
23 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
24 one (21) days after being served with these Findings and Recommendations, the parties may file
25 written objections with the Court. The document should be captioned “Objections to Magistrate
26 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
27 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,
1 | 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
2 | 1991)).
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4 IT IS SO ORDERED. FA. ee
5 |Dated: _ January 12, 2023
‘ UNITED STATES MAGISTRATE JUDGE
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