district court did not err in dismissing 13 unexhausted claims where there was “no need for further factual development” and the issue 14 turned on the adequacy of facts fully set forth in the complaint
How later courts described this case
- district court did not err in dismissing 13 unexhausted claims where there was “no need for further factual development” and the issue 14 turned on the adequacy of facts fully set forth in the complaint
- setting forth objective and subjective prongs relevant 3 to the determination whether the threat of retaliation for reporting an incident renders a prison 4 grievance process effectively unavailable
- a plaintiff is not required 7 to exhaust further levels of review after being reliably informed by administrator that no further 8 remedies are available
- “the threat of 3 retaliation for reporting an incident can render the prison grievance process effectively 4 unavailable”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 NICKY BOONE, No. 2:20-cv-02100 WBS DB P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 RUBY, et al.,
15 Defendants.
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18 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action under 42 U.S.C. §
19 1983. This matter was referred to the undersigned by Local Rule 302. See 28 U.S.C. § 636(b)(1).
20 Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is before the court.
21 (ECF No. 41.) Defendants assert plaintiff failed to exhaust administrative remedies. On April 14,
22 2023, plaintiff filed a notice of change of address stating he is opposed to any motion for
23 dismissal and appearing to request an extension of time to respond to the motion to dismiss. (ECF
24 No. 44.)1 After reviewing the pending motion to dismiss, the undersigned finds an opposition is
25 1 Plaintiff’s notice also states plaintiff seeks a court order for the state “to allow [him] to watch
the video in question [of the assault that underlies plaintiff’s claims].” (ECF No. 44 at 1.) Plaintiff
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is informed that the court will consider granting such a request only if plaintiff first seeks to view
27 the video in question during the discovery process in this case through a timely request for
production of documents or electronically stored information served to defendant’s counsel. See
28 Fed. R. Civ. P. 34. If plaintiff timely serves such a request and is not allowed to view the video,
1 unnecessary because it is not clear from the face of the complaint that plaintiff failed to exhaust
2 available administrative remedies. Accordingly, the undersigned will recommend the motion to
3 dismiss be denied.
4 RELEVANT PROCEDURAL BACKGROUND
5 Plaintiff filed the operative first amended complaint (“FAC”) on November 1, 2021. (ECF
6 No. 16.) Currently, plaintiff proceeds with claims alleging violations of his rights under the
7 Eighth Amendment against Officer Vargass, Sergeant Silva, Officer Ruby, Officer Armstead, and
8 Officer Arbaca. (See ECF No. 35.)
9 ALLEGATIONS IN THE FAC
10 On July 12, 2020, plaintiff was assaulted by three inmates while in the dayroom at High
11 Desert State Prison in Susanville, CA. (ECF No. 16 at 4.) The assault occurred during third watch
12 when C/O Nakken and C/O Vargass left their posts. (Id. at 4, 8.) The assault was captured on
13 surveillance camera. (Id. at 4.) Plaintiff was hit with fists and kicked in the head. (Id.) After the
14 assault, while plaintiff was on the ground and posed no threat, C/O Vargass emptied a can of
15 mace on plaintiff for no reason. (Id. at 7.)
16 The amended complaint has an attachment purporting to be a statement by Inmate
17 Cisneros, who states he and two other inmates assaulted plaintiff on July 12, 2020, at
18 approximately 3:45 p.m. (ECF No. 16 at 5.) The statement indicates the assault was orchestrated
19 by correctional officers. (Id.) Specifically, C/O Rubi, C/O Armstead, C/O Arbaca, C/O Vargass,
20 and Sgt. Silva approached inmate Cisneros and “promised several beneficial promises if
21 [Cisneros], Inmate Todd, and Inmate Mendoza were to carry out with this assault [against
22 plaintiff].” (Id.) As a result of the assault, plaintiff suffered blunt trauma to the head, burning eye,
23 and blurred vision. (Id. at 4, 7.)
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then plaintiff may bring a timely motion to compel. See Fed. R. Civ. P. 37. Plaintiff is further
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informed that, if the undersigned’s recommendation to deny defendants’ motion to dismiss is
27 adopted by the district judge assigned to this case, then subsequently, the undersigned will issue a
discovery and scheduling order with information about discovery procedures and setting
28 discovery deadlines for this case.
1 APPLICABLE STANDARDS
2 A motion to dismiss for failure to state a claim should not be granted unless it appears
3 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would
4 entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson,
5 355 U.S. 41, 45-46 (1957)). The purpose of a motion to dismiss pursuant to Federal Rule of Civil
6 Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp.
7 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). A dismissal may be warranted where there is “the
8 lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
9 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
10 In evaluating whether a complaint states a claim on which relief may be granted, the court
11 accepts as true the allegations in the complaint and construes the allegations in the light most
12 favorable to the plaintiff. Hishon, 467 U.S. at 73. Pro se pleadings are held to a less stringent
13 standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium).
14 Nevertheless, a court’s liberal interpretation of a pro se complaint may not supply essential
15 elements that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th
16 Cir. 1982). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court considers only
17 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly
18 subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)).
19 DISCUSSION
20 A. EXHAUSTION REQUIREMENT
21 The Prison Litigation Reform Act (PLRA) of 1995 requires that prisoners exhaust “such
22 administrative remedies as are available” before commencing a suit challenging their prison
23 conditions. 42 U.S.C. § 1997e(a). This statutory exhaustion requirement applies to all inmate suits
24 about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002).
25 In order to exhaust available administrative remedies, a prisoner must comply with the
26 prison’s procedural rules, including deadlines, as a necessary precondition to bringing suit in
27 federal court. Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“Proper exhaustion demands compliance
28 with an agency’s deadlines and other critical procedural rules.”). “[I]t is the prison’s
1 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock,
2 549 U.S. 199, 219 (2007). “The obligation to exhaust ‘available’ remedies persists as long as
3 some remedy remains ‘available.’ Once that is no longer the case, then there are no ‘remedies ...
4 available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d
5 926, 935 (9th Cir. 2005) (alterations and italics in original) (citing Booth v. Churner, 532 U.S.
6 731 (2001)).
7 Since exhaustion is mandatory, unexhausted claims may not be brought to court. Jones,
8 549 U.S. at 211 (citing Porter, 534 U.S. at 524); see also Ross v. Blake, 136 S. Ct. 1850, 1856
9 (2016) (reaffirming that “special circumstances” do not excuse a failure to exhaust if remedies
10 were available). If a prisoner has not exhausted available administrative remedies before filing his
11 federal suit, the court must dismiss the action without prejudice. McKinney v. Carey, 311 F.3d
12 1198, 1200-01 (9th Cir. 2002) (per curiam).
13 The failure to exhaust is an affirmative defense for which the defendants bear the burden
14 of raising and proving the absence of exhaustion. Jones, 549 U.S. 216; Albino v. Baca, 747 F.3d
15 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of the
16 complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166;
17 see also McBride v. Lopez, 807 F.3d 982, 988 (9th Cir. 2015). Otherwise, defendants must
18 produce evidence proving the failure to exhaust. McBride, 807 F.3d at 985.
19 B. UNAVAILABILITY EXCEPTION
20 The exhaustion requirement of 42 U.S.C. § 1997 hinges on the availability of
21 administrative remedies. Ross, 136 S. Ct. at 1858. “An inmate ... must exhaust available
22 remedies, but need not exhaust unavailable ones.” In Ross, the Supreme Court identified three
23 circumstances in which administrative remedies were unavailable: (1) where an administrative
24 remedy “operates as a simple dead end” in which officers are “unable or consistently unwilling to
25 provide any relief to aggrieved inmates;” (2) where an administrative scheme is “incapable of
26 use” because “no ordinary prisoner can discern or navigate it,” and (3) where “prison
27 administrators thwart inmates from taking advantage of a grievance process through machination,
28 misrepresentation, or intimidation.” Id. at 1859-60. Prison administrators thwart an inmate from
1 taking advantage of a grievance process if the actions of prison staff render a prisoner’s
2 administrative remedies “effectively unavailable.” See McBride, 807 F.3d at 987 (“the threat of
3 retaliation for reporting an incident can render the prison grievance process effectively
4 unavailable”); Albino, 747 F.3d at 1177 (failure to inform a prisoner of the administrative appeals
5 process following multiple requests for instruction rendered his administrative remedy effectively
6 unavailable); Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (a plaintiff is not required
7 to exhaust further levels of review after being reliably informed by administrator that no further
8 remedies are available).
9 C. FAILURE TO EXHAUST IS NOT CLEAR FROM THE FACE OF THE SAC
10 Defendants argue plaintiff admitted he did not exhaust available administrative remedies
11 because he has pleaded that he filed a grievance and subsequently did not appeal the decision.
12 (ECF No. 41 at 4-6.) Defendants argue plaintiff has admitted that administrative remedies were
13 available for his claims. (Id. at 5.)
14 The court liberally construes the allegations of the operative complaint on a motion to
15 dismiss under Rule 12(b)(6). Here, the FAC is presented on a form complaint for suits brought by
16 prisoners under 42 U.S.C. § 1983. Pertaining to exhaustion, plaintiff checked the box for “Yes” in
17 response to the question “Are there any administrative remedies (grievance procedures or
18 administrative appeals) available at your institution?” (ECF No. 16 at 4, 7, 8 (emphasis added).)
19 Plaintiff checked the box for “No” in response to the question “Did you appeal your request for
20 relief… to the highest level?” (Id.) The form complaint next stated: “If you did not submit or
21 appeal a request for administrative relief at any level, briefly explain why you did not.” (Id.) As
22 explanation, plaintiff alleged, “I was scared that if I did, I would get assaulted again.” (Id.)
23 Thus, plaintiff alleged that some administrative remedies were available at his institution
24 but that plaintiff did not appeal his request for administrative relief to the highest level because he
25 was scared that if he did, he would get assaulted. Liberally construing these allegations, the court
26 can infer that plaintiff subjectively feared retaliation. The FAC does not set forth why plaintiff
27 feared he would get assaulted again if he appealed his request for administrative relief to the
28 highest level. It is unclear from the face of the FAC and its attachments whether plaintiff can
1 establish that any retaliation that he feared rendered the administrative remedies effectively
2 unavailable. See McBride, 807 F.3d at 987 (setting forth objective and subjective prongs relevant
3 to the determination whether the threat of retaliation for reporting an incident renders a prison
4 grievance process effectively unavailable).
5 The problem with the argument in defendant’s current motion is that plaintiff was not
6 required to specially plead or demonstrate facts showing that no administrative remedy was
7 available or setting forth the basis for his fear of appealing his grievance to the highest level. See
8 Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. Because, in this instance, plaintiff did not plead
9 the facts necessary to determine whether he had an available administrative remedy and/or
10 whether administrative remedies for his claims were effectively unavailable, this is not one of
11 those “rare cases where a failure to exhaust is clear from the face of the complaint.” Albino, 747
12 F.3d at 1169; compare McBride, 807 F.3d at 985 (district court did not err in dismissing
13 unexhausted claims where there was “no need for further factual development” and the issue
14 turned on the adequacy of facts fully set forth in the complaint). Defendants must, in this case,
15 plead and prove plaintiff’s failure to exhaust available administrative remedies. See Jones, 549
16 U.S. at 216.
17 CONCLUSION AND RECOMMENDATION
18 Based on the foregoing, IT IS RECOMMENDED as follows:
19 1. Defendants’ motion to dismiss asserting a failure to exhaust administrative
20 remedies (ECF No. 41) be denied.
21 2. Defendants be ordered to answer the complaint within 30 days after any order
22 adopting these findings and recommendations.
23 These findings and recommendations are submitted to the United States District Judge
24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after
25 being served with these findings and recommendations, any party may file written objections with
26 the court and serve a copy on all parties. Such a document should be captioned “Objections to
27 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be
28 filed and served within 14 days after service of the objections. The parties are advised that failure
1 | to file objections within the specified time may waive the right to appeal the District Court’s
2 | order. Martinez vy. Yist, 951 F.2d 1153 (9th Cir. 1991),
3 | Dated: June 16, 2023
6. | boon2t00.midexhaus J ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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