Donald Stratton v. Julie Buck

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD LYLE STRATTON, 

Plaintiff-Appellant,

v. No. 10-35656

D.C. No.

JULIE BUCK, in her individual

capacity; DALE BROWN, in his  3:09-cv-05571-

individual capacity; JOHN DOE, in RJB-KLS

his individual capacity; JANE DOE, OPINION

in her individual capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington at Tacoma

Robert J. Bryan, District Judge, Presiding

Argued and Submitted

June 8, 2012—Seattle, Washington

Filed September 19, 2012

Before: Barry G. Silverman and Mary H. Murguia,

Circuit Judges, and Leslie E. Kobayashi, District Judge.*

Opinion by Judge Kobayashi

*The Honorable Leslie E. Kobayashi, United States District Judge for

the District of Hawaii, sitting by designation.

11477

STRATTON v. BUCK 11479

COUNSEL

Shane P. Coleman, Holland & Hart LLP, Billings, Montana,

for the plaintiff-appellant.

Michele C. Atkins (argued) and Christopher Holmes Ander-

son, Fain Anderson VanDerhoef, PLLC, Seattle, Washington,

for defendant-appellee Julie Buck.

Candie M. Dibble, Attorney General’s Office, Olympia,

Washington, for defendant-appellee Dale Brown.

11480 STRATTON v. BUCK

OPINION

KOBAYASHI, District Judge:

Plaintiff-Appellant Donald Lyle Stratton (“Stratton”)

appeals from the judgment in favor of Defendant-Appellee

Dale Brown (“Brown”) entered pursuant to the order granting

Brown’s motion to dismiss for failure to exhaust administra-

tive remedies.1 Stratton argues that the district court erred in

considering matters outside of the pleadings and in dismissing

his case because the district court failed to provide him with

notice of the requirements for a response to a motion to dis-

miss for failure to exhaust administrative remedies in which

the district court considers documents beyond the pleadings.

Stratton also argues that the district court erred in concluding

that he failed to exhaust his administrative remedies.

We hold that Stratton was entitled to notice — similar to

the notice for motions for summary judgment described in

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) —

explaining the requirements for a response to Brown’s motion

to dismiss for failure to exhaust administrative remedies and

the consequences if the district court granted the motion. We

further hold that Stratton had a substantial right to such notice

and that the district court’s failure to provide such notice was

not harmless.

We therefore reverse the dismissal of Stratton’s claims

against Brown and remand this case to the district court for

further proceedings.

1

Stratton also appeals from the judgment in favor of Defendant-

Appellee Julie Buck, M.D., entered pursuant to the order granting Dr.

Buck’s motion for summary judgment. That portion of Stratton’s appeal

is addressed in a separate Memorandum filed concurrently with the instant

Opinion.

STRATTON v. BUCK 11481

FACTS AND PROCEDURAL HISTORY

On August 17, 2008, Stratton was assaulted by a fellow

inmate at the Stafford Creek Corrections Center (“SCCC”).

While Stratton was in a protective custody holding cell after

the assault, Brown, a registered nurse at SCCC, saw him lying

on the floor. Brown asked Stratton, “what hurts, what hap-

pened, are you in pain, why were you assaulted . . . ?”

Defendant-Appellee Julie Buck, M.D. (“Dr. Buck”) examined

Stratton after the fire department transported him to the Emer-

gency Department at the Grays Harbor Community Hospital.

Stratton’s complaint, filed November 16, 2009, alleged that

Dr. Buck’s and Brown’s failure to provide pain medication to

him violated his Eighth Amendment right to be free from

cruel and unusual punishment and his Fourteenth Amendment

right to due process. Throughout the district court proceed-

ings, Stratton represented himself pro se.

Brown filed a Motion to Dismiss on March 31, 2010. On

July 1, 2010, the magistrate judge filed her Report and Rec-

ommendation to grant Brown’s Motion to Dismiss. The mag-

istrate judge concluded that Stratton failed to exhaust his

administrative remedies and that it was unnecessary to reach

Brown’s other arguments in favor of dismissal. On July 26,

2010, the district judge issued his order adopting the Report

and Recommendation and dismissing Stratton’s claims

against Brown without prejudice. Also on July 26, 2010,

Stratton filed objections to the Report and Recommendation.

On July 28, 2010, the district judge issued an order affirming

his July 26, 2010 order, despite Stratton’s objections. On

August 18, 2010, Stratton filed a notice of appeal relating to

the July 26, 2010 order granting Brown’s Motion to Dismiss.

JURISDICTION

The district court apparently did not enter a separate judg-

ment, as required by Fed. R. Civ. P. 58(a)(1). Where there is

11482 STRATTON v. BUCK

no separate judgment, pursuant to Fed. R. App. P.

4(a)(7)(A)(ii), we deem the entry of judgment to be 150 days

after the entry of an appealable final order. Stephanie-

Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d

701, 703-04 (9th Cir. 2007). Although a notice of appeal filed

before the entry of judgment is premature, Fed. R. Civ. P.

4(a)(2) treats such notices as filed on the date of the entry of

judgment. Id. at 704. Stratton’s notice of appeal is therefore

timely, and we have jurisdiction pursuant to 28 U.S.C.

§ 1291.

STANDARD OF REVIEW

We review a district court’s dismissal of a prisoner’s com-

plaint for failure to exhaust his administrative remedies de

novo. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010).

When the district court considers a motion to dismiss, it may

“ ‘look beyond the pleadings and decide disputed issues of

fact[,]’ ” and we review the district court’s factual findings for

clear error. Id. (quoting Wyatt v. Terhune, 315 F.3d 1108,

1119-20 (9th Cir. 2003)).

ANALYSIS

I. Notice to Pro Se Prisoner Litigants

[1] This court has held that a pro se prisoner litigant is

entitled to “fair notice of the requirements and consequences

of the summary judgment rule.” Solis v. Cnty. of Los Angeles,

514 F.3d 946, 952 (9th Cir. 2008) (citing Rand, 154 F.3d at

959). Either the district court or the moving party may pro-

vide the notice, which “ ‘must be phrased in ordinary, under-

standable language’ and . . . must inform the prisoner both of

his ‘right to file counter-affidavits or other responsive eviden-

tiary materials’ and, ‘most importantly, . . . of the effect of

losing on summary judgment.’ ” Id. (some alterations in Solis)

(quoting Rand, 154 F.3d at 960). Appendix “A” to Rand is a

model notice to pro se prisoner litigants. 154 F.3d at 962-63.

STRATTON v. BUCK 11483

[2] This court has also recognized that an unenumerated

Fed. R. Civ. P. 12(b) motion to dismiss based on the failure

to exhaust administrative remedies2 is closely analogous to a

motion for summary judgment and, if the district court looks

beyond the pleadings in deciding the motion, the district court

“must assure that [the pro se prisoner plaintiff] has fair notice

of his opportunity to develop a record.” Wyatt, 315 F.3d at

1120 n.14. This court noted that the reasons for requiring such

notice are the same as the reasons for requiring a Rand notice

for motions for summary judgment. Id. (citing Section I of

Wyatt, which discussed Rand). Wyatt noted that the reasons

for the Rand notice include “ ‘the complexity of the summary

judgment rule’ ” and “ ‘the lack of legal sophistication of the

pro se prisoner[.]’ ” Id. at 1114 (quoting Rand, 154 F.3d at

960). A motion to dismiss for failure to exhaust administrative

remedies is also complex, and a pro se prisoner lacking legal

sophistication is unlikely to understand how to respond to a

motion to dismiss for failure to exhaust administrative reme-

dies.

[3] We therefore hold that, when a district court will con-

sider materials beyond the pleadings in ruling upon a defen-

dant’s motion to dismiss for failure to exhaust administrative

remedies, the pro se prisoner plaintiff must receive a notice,

similar to the notice described in Rand.3 The notice must

explain that: the motion to dismiss for failure to exhaust

administrative remedies is similar to a motion for a summary

judgment in that the district court will consider materials

beyond the pleadings; the plaintiff has a “right to file counter-

affidavits or other responsive evidentiary materials”; and the

2

The exhaustion provision in the Prison Litigation Reform Act provides:

“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 correctional facility until such administrative reme-

dies as are available are exhausted.” 42 U.S.C. § 1997e(a).

3

The model notice appended to Rand is sufficient if the district court,

or the moving defendant, tailors the model notice to address a Rule 12(b)

motion to dismiss for failure to exhaust administrative remedies.

11484 STRATTON v. BUCK

effect of losing the motion. See Rand, 154 F.3d at 960. The

notice “must be phrased in ordinary, understandable language

calculated to apprise an unsophisticated prisoner of his or her

rights and obligations” under Rule 12. See id. We also note

that a Rand notice or a Wyatt notice “must be provided to pro

se prisoner plaintiffs at the time the defendants’ motions are

filed.” Woods v. Carey, ___ F.3d ___, Nos. 09-15548, 09-

16113, 2012 WL 2626912, at *1 (9th Cir. July 6, 2012).

II. Adequacy of the Notice to Stratton

We now turn to the notice requirement in the instant case.

In support of the portion of his Motion to Dismiss arguing

that Stratton failed to exhaust his administrative remedies,

Brown attached a declaration from the Grievance Program

Manager in the Office of Correctional Operations, Washing-

ton State Department of Corrections, Stratton’s Department of

Corrections grievances, and correspondence related to the

grievances. The magistrate judge considered these documents

in recommending that the district judge grant Brown’s Motion

to Dismiss. Thus, Stratton was entitled to notice explaining

the process associated with a motion to dismiss for failure to

exhaust administrative remedies.

The magistrate judge’s Pretrial Scheduling Order, filed Jan-

uary 13, 2010, contained a section entitled “MOTIONS”,

which quoted the model notice appended to Rand. Insofar as

the notice quoted the Rand model notice, it did not mention

Rule 12(b), nor did it explain that a motion to dismiss for fail-

ure to exhaust administrative remedies is similar to a motion

for summary judgment in that the district court will consider

documents beyond the pleadings. Thus, Stratton did not have

fair notice of his opportunity to develop a record to oppose

Brown’s Motion to Dismiss to the extent that the motion

alleged a failure to exhaust administrative remedies, nor did

Stratton have fair notice of the effect of losing the motion.

Further, insofar as the district court failed to give Stratton fair

notice of his opportunity to develop a record on the exhaus-

STRATTON v. BUCK 11485

tion issue, the district court erred in considering documents

beyond the pleadings.

[4] A pro se prisoner plaintiff has a substantial right to

notice explaining the process associated with a motion to dis-

miss for failure to exhaust administrative remedies where the

district court will consider materials beyond the pleadings. In

most cases, the failure to provide the requisite notice will nec-

essarily affect the pro se prisoner plaintiff ’s substantial rights.

See Rand, 154 F.3d at 962. The failure to provide the required

notice will be harmless only in an unusual case, such as where

judicial notice of district court records establishes that the pro

se prisoner plaintiff recently received a proper notice in a pre-

vious action or where the pro se prisoner plaintiff ’s response

to the motion to dismiss for failure to exhaust administrative

remedies establishes that the plaintiff has a complete under-

standing of the notice described in this opinion. See id. at 961-

62. We also recognize that the failure to provide the pro se

prisoner plaintiff with the requisite notice will also be harm-

less if the plaintiff cannot prove any set of facts that would

entitle him or her to relief. See id. at 962 n.9. In the excep-

tional case in which the failure to provide the requisite notice

is subject to harmless error review, that review “must be

undertaken on an objective basis.” See id. at 962 (footnote

omitted).

[5] In the instant case, there is no indication in the record

on appeal that Stratton received any notice regarding motions

to dismiss for failure to exhaust administrative remedies,

either in this case or in another recent case before the district

court. As previously noted, Brown’s Motion to Dismiss relied

upon a declaration and supporting documents attached to the

motion. Stratton did not attach any affidavits, declarations, or

supporting documents to his response to Brown’s Motion to

Dismiss. Stratton’s response argued that he exhausted all

administrative remedies because he “made a good faith effort

to file the grievance properly nad (sic) appealed it several

11486 STRATTON v. BUCK

times[.]”4 All of the grievances, letters, and responses that

Stratton referred to in his exhaustion argument were attached

to Brown’s Motion to Dismiss. With regard to Stratton’s Sep-

tember 2, 2008 grievance, however, Stratton cited “the

reverse side of the inmate grievance forms” and “DOC POL-

ICY 560.100 (Offender Grievance Program)” in support of

his argument that he did not have notice that the Department

of Corrections would determine that his grievance was not

grieveable if he cited sections of the Revised Code of Wash-

ington in his grievance form. The version of Stratton’s Sep-

tember 2, 2008 grievance attached to Brown’s Motion to

Dismiss does not include the reverse side of the grievance

form. If Stratton had received proper notice explaining the

process associated with a motion to dismiss for failure to

exhaust administrative remedies, including his right to file

counter-affidavits or other responsive evidentiary materials,

Stratton could have submitted documents such as a copy of

the September 2, 2008 grievance with the reverse side of the

form and the relevant policies governing the grievance pro-

gram. Thus, after an objective review of the record in this

case, we cannot conclude that there is no set of facts that

Stratton could prove which would entitle him to relief. We

therefore cannot conclude that the failure to provide Stratton

with notice explaining the process associated with a motion to

dismiss for failure to exhaust administrative remedies, in

which the district court will consider documents beyond the

pleadings, was harmless. Accordingly, we reverse the judg-

ment in favor of Brown entered pursuant to the order granting

Brown’s Motion to Dismiss and remand the case to the dis-

trict court. We express no opinion on the merits of Stratton’s

argument that he exhausted all of his available remedies, and

4

In the instant appeal, Stratton expands upon this argument by asserting

that he exhausted all of the administrative remedies which were available.

He contends that either the SCCC personnel did not have the authority to

act on his grievances or there were no available administrative remedies

for his grievances due to the improper screening of his grievances. Thus,

he contends that exceptions to the exhaustion requirement applied, and he

had no further obligation to exhaust administrative remedies.

STRATTON v. BUCK 11487

we leave that matter for the district court to decide in the first

instance.

REVERSED AND REMANDED.