(PC)Perez v. Moreland ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, No. 2:17-cv-0508 KJM AC P 12 Plaintiff, 13 v. ORDER 14 KORY L. HONEA, et al., 15 Defendants. 16 17 Plaintiff is a former county and current state prisoner proceeding pro se with a civil rights 18 action pursuant to 42 U.S.C. § 1983. On June 23, 2020, defendants filed a motion to dismiss and 19 noticed the motion for hearing before the assigned District Judge. ECF No. 32. The hearing 20 before the District Judge has now been vacated and the motion referred to the undersigned. ECF 21 No. 34. 22 Defendants’ motion seeks to dismiss the complaint on the grounds that plaintiff failed to 23 exhaust her administrative remedies prior to filing the complaint and that the complaint fails to 24 state a claim for relief.1 ECF No. 32-1 at 5-13. However, contrary to defendants’ assertion, the 25 1 The motion also requests that the court revoke plaintiff’s leave to proceed in forma pauperis on 26 the ground that she has accrued three strikes under 28 U.S.C. § 1915 and cannot show that she is at imminent risk of serious physical injury. ECF No. 32-1 at 3-4. However, none of the cases 27 cited by defendants were dismissed prior to the initiation of this case. Id. at 4. In fact, all but one of the cases cited were initiated after this case. As a result, defendant has failed to identify a 28 (continued) 1 issue of exhaustion is not properly raised in an unenumerated Rule 12(b)(6) motion and has not 2 been for some time. On April 3, 2014, the United States Court of Appeals for the Ninth Circuit 3 overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper 4 procedural device for raising the issue of administrative exhaustion. Albino v. Baca, 747 F.3d 5 1162, 1166 (9th Cir. 2014) (en banc). Following the decision in Albino, a defendant may raise 6 the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), “[i]n the rare 7 event that a failure to exhaust is clear on the face of the complaint,” or (2) a motion for summary 8 judgment. Id. at 1166. “[A]n unenumerated motion under Rule 12(b) is not the appropriate 9 procedural device for pretrial determination of whether administrative remedies have been 10 exhausted under the PLRA.” Id. at 1168. 11 It is not clear from the face of the complaint that plaintiff failed to exhaust, as the 12 complaint indicates that she did in fact exhaust her administrative remedies (ECF No. 23 at 3-5) 13 and defendants rely on outside evidence to demonstrate her alleged failure (ECF No. 32-4). 14 Because defendants have improperly raised the exhaustion defense in their motion to dismiss, the 15 motion will be denied without prejudice to a motion in the proper form. Defendants may either 16 re-file their motion to dismiss without the exhaustion argument or they may file it as a motion for 17 summary judgment that complies with the applicable rules and includes the notice required by 18 Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc).2 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Defendants’ motion to dismiss (ECF No. 32) is denied without prejudice to a motion 21 in the proper form. 22 2. Within fourteen days of the service of this order, defendants must (1) re-file their 23 motion to dismiss without the exhaustion argument; (2) file a motion for summary judgment on 24 exhaustion that complies with the applicable rules and includes the notice required by Rand v. 25 26 single case that would count as a strike with respect to the instant action. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997) (the language of § 1915(g) “makes clear its application to claims 27 dismissed prior to the current proceedings”). 2 Defendants will not be precluded from raising the exhaustion issue at a later date if they choose 28 not to file a motion for summary judgment at this time. MAIS Get UVM OUING INIT ENN RAMU OPO IA a eer PAY VI 1 | Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); or (3) answer the complaint. 2 | DATED: July 14, 2020 ~ 3 Hthren— Llane ALLISON CLAIRE 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28