(PC) Scott v. Albright ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL EUGENE SCOTT, No. 1:18-cv-01480-JLT (PC) 12 Plaintiff, ORDER ON PLAINTIFF=S MOTION REGARDING EXHAUSTION OF 13 v. ADMINISTRATIVE REMEDIES 14 D. ALBRIGHT, et al., (Doc. 50) 15 Defendants. 16 17 On July 30, 2019, Plaintiff filed a motion in which he contends that he exhausted 18 administrative remedies and objected to Defendants’ Answer to the extent that Defendants 19 contend he failed to do so before filing suit. (Doc. 50.) The time for Defendants to file an 20 opposition to Plaintiff’s motion has lapsed. The motion is deemed submitted. L.R. 230(l). 21 Failure to exhaust administrative remedies before filing suit as required by 42 U.S.C. § 22 1997e(a) is an affirmative defense. Plaintiff’s motion is construed as a motion to strike the 23 portion of Defendants Answer that raises exhaustion as an affirmative defense. The Federal 24 Rules of Civil Procedure require a party responding to a pleading to identify its defenses to each 25 claim asserted. Fed. R. Civ. P. 8(b)(1). Further, responding parties are instructed to “state any 26 avoidance or affirmative defense, including: accord and satisfaction; assumption of risk; 27 contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by 28 fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of 1 limitations; and waiver.” Fed. R. Civ. P. 8(c). 2 In Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015), the Ninth 3 Circuit Court of Appeals determined, “‘the “fair notice’ required by the pleading standards only 4 requires describing the defense in “general terms.” Though this is not a demanding standard, it 5 does still require a party to plead some factual basis for its allegations. “Fair notice generally 6 requires that the defendant identify the nature and grounds for the affirmative defense, rather than 7 plead a detailed statement of the facts upon which the defense is based.” Dodson v. Munirs Co., 8 2013 WL 3146818, at *2 (E.D. Cal. June 18, 2013). Likewise, “[a] reference to a doctrine, like a 9 reference to statutory provisions, is insufficient notice.” Qarbon.com Inc. v. eHelp Corp., 315 F. 10 Supp. 2d 1046, 1049 (N.D. Cal. 2004)). 11 In their Answer, Defendants state: 12 In response to Section II of the complaint, entitled “Exhaustion of 13 Administrative Remedies,” Defendants admit that an administrative grievance process existed at North Kern State Prison at all relevant times to this action. 14 Defendants deny that Plaintiff filed grievances concerning all the facts in his complaint, and on that basis they deny the remaining factual allegations in this 15 section. 16 (Doc. 44, ¶2.) Thus, Defendants admit that NKSP has an inmate grievance process but deny that 17 Plaintiff filed grievances concerning all the facts in his complaint. (Id.) The Court finds Plaintiff 18 has been placed on fair notice of this defense and, to the extent that Plaintiff’s motion seeks to 19 strike this affirmative defense, it is DENIED. 20 If Defendants intend to raise Plaintiff’s exhaustion efforts as a dispositive issue, they may 21 do so in a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) 22 (en banc), cert. denied, 135 S.Ct. 403 (2014); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 23 (9th Cir. 2011). To the extent that Plaintiff’s motion seeks a determination on this issue it is 24 disregarded as his efforts are premature. 25 /// 26 /// 27 /// 28 /// 1 Accordingly, Plaintiff’s motion challenging exhaustion of administrative remedies, filed 2 on July 30, 2019 (Doc. 50), is DENIED. 3 IT IS SO ORDERED. 4 5 Dated: August 22, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28