(PC) Dao v. Tabor ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CUONG HUY DAO, No. 2: 22-cv-0846 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 P. TABOR, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss pursuant to 20 Federal Rule of Civil Procedure 12(b)(6). (ECF No. 33.) Defendants move to dismiss plaintiff’s 21 failure-to-protect claim on the grounds that plaintiff failed to exhaust administrative remedies as 22 to this claim. (Id.) Defendants also argue that plaintiff is not entitled to compensatory damages 23 as to his failure-to-protect claim because he failed to allege a physical injury. (Id.) 24 For the reasons stated herein, the undersigned recommends that defendants’ motion to 25 dismiss plaintiff’s failure-to-protect claim be granted. 26 Also pending is defendants’ motion for an extension of time to file a reply to plaintiff’s 27 opposition. (ECF No. 35.) Good cause appearing, defendants’ motion for extension of time is 28 granted, and the reply is deemed timely filed. 1 Plaintiff’s Claims 2 This action proceeds on plaintiff’s complaint against defendants Correctional Officers 3 Tabor and Hibbard. (ECF No. 1.) Plaintiff alleges that on February 5, 2020, defendants used 4 excessive force against plaintiff in violation of the Eighth Amendment. (Id. at 2-8.) Plaintiff also 5 allege that defendants solicited a white prisoner to attack plaintiff in violation of the Eighth 6 Amendment, i.e., a failure-to-protect claim. (Id. at 8-9.) 7 Failure to Exhaust Administrative Remedies 8 Legal Standard 9 The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners pursuing civil 10 rights claims under 42 U.S.C. § 1983 must first exhaust administrative remedies. See 42 U.S.C. 11 § 1997e(a) (“No action shall be brought with respect to prison conditions under [42 U.S.C. 12 § 1983], by a prisoner confined in any jail, prison, or other correctional facility until such 13 administrative remedies as are available are exhausted.”). “[T]he PLRA’s exhaustion 14 requirement applies to all inmate suits about prison life, whether they involve general 15 circumstances or particular episodes, and whether they allege excessive force or some other 16 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has held that the PLRA 17 requires a prisoner to complete any prison administrative process capable of addressing the 18 inmate’s complaint and providing some form of relief, even if the prisoner seeks money damages 19 and such relief is not available under the administrative process. See Booth v. Churner, 532 U.S. 20 731, 740-41 (2001); see also Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (requiring inmates to 21 exhaust all claims substantively and procedurally through administrative remedies before filing 22 suit in court). 23 The failure to exhaust is an affirmative defense, and the defendants bear the burden of 24 raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino 25 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear 26 from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” 27 Albino v. Baca, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the 28 failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the 1 undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to 2 exhaust. Id. 3 Discussion 4 Defendants argue that it is clear from the face of plaintiff’s complaint that he failed to 5 exhaust administrative remedies as to his failure-to-protect claim. Defendants argue that 6 plaintiff’s complaint includes a grievance plaintiff alleges exhausted his claims. Defendants 7 contend that this grievance does not allege that defendants solicited another inmate to attack 8 plaintiff. 9 In his complaint, plaintiff alleges that grievance SAC-B-20-646 exhausted his 10 administrative remedies. (ECF No. 1 at 1-2.) Plaintiff attaches copies of grievance SAC-B-20- 11 646 to his complaint. (Id. at 13-17.) In grievance SAC-B-20-646, plaintiff alleged that 12 defendants Hibbard and Tabor used excessive force against plaintiff on February 5, 2020. (Id. at 13 13-17.) In grievance SAC-B-20-646, plaintiff did not claim that defendants solicited a white 14 prisoner to attack plaintiff. (Id.) 15 In his opposition to defendants’ motion, plaintiff appears to concede that he failed to 16 exhaust administrative remedies as to his failure-to-protect claim. (ECF No. 34 at 2-5.) Plaintiff 17 does not claim that he raised his failure-to-protect claim in another grievance. (Id.) 18 The undersigned finds that it is clear from the face of plaintiff’s complaint that plaintiff 19 failed to exhaust administrative remedies as to his failure-to-protect claim, i.e., his claim alleging 20 that defendants solicited a white prisoner to attack plaintiff. Accordingly, defendants’ motion to 21 dismiss plaintiff’s failure-to-protect claim should be granted. 22 In his opposition, plaintiff also states that it may be too late for him to exhaust 23 administrative remedies as to his failure-to-protect claim. Plaintiff requests that the court 24 “overrule” the administrative exhaustion requirement as to his failure-to-protect claim. Plaintiff 25 is informed that the undersigned does not have the authority to overrule the administrative 26 exhaustion requirement. 27 //// 28 //// 1 Remaining Issues 2 In the motion to dismiss, defendants also argue that plaintiff is not entitled to 3 compensatory damages for his failure-to-protect claim because he failed to allege a physical 4 injury. The undersigned need not reach this argument because defendants’ motion to dismiss 5 plaintiff’s failure-to-protect claim should be granted based on plaintiff’s failure to exhaust 6 administrative remedies. 7 In his opposition, plaintiff requests that the court provide him with discovery documents. 8 (ECF No. 34 at 6-7.) Plaintiff is informed that the court will issue a discovery and scheduling 9 order following receipt of defendants’ answer to plaintiff’s excessive force claim. The discovery 10 and scheduling order will address discovery procedures and related deadlines. Plaintiff is 11 informed that court permission is not necessary for discovery requests and that neither discovery 12 requests served on an opposing party nor that party’s responses should be filed until such time as 13 a party becomes dissatisfied with a response and seeks relief from the court pursuant to the 14 Federal Rules of Civil Procedure. Discovery requests between the parties shall not be filed with 15 the court unless, and until, they are at issue. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The Clerk of the Court shall appoint a district judge to this action; 18 2. Defendants’ motion for extension of time (ECF No. 35) is granted; the reply is deemed 19 timely filed; and 20 IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss plaintiff’s failure- 21 to-protect claim (ECF No. 33) be granted on the grounds that plaintiff failed to exhaust 22 administrative remedies as to this claim; defendants be ordered to file a response to plaintiff’s 23 excessive force claim within thirty days of the adoption of these findings and recommendations 24 by the district court. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 || objections shall be filed and served within fourteen days after service of the objections. The 3 || parties are advised that failure to file objections within the specified time may waive the right to 4 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 || Dated: March 29, 2023 Foci) Aharon 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 8 9 10 Dao846.mtd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28