Hannah v. Ramirez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19cv787-LAB(BLM) 11 ANTONIO LASALE HANNAH, 12 Plaintiff, REPORT AND RECOMMENDATION ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS 14 CORPORAL RAMIREZ, #4746, [ECF No. 9] 15 Defendant. 16 17 This Report and Recommendation is submitted to United States Chief Judge Larry Alan 18 Burns pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District 19 Court for the Southern District of California. For the following reasons, the Court 20 RECOMMENDS that Defendant’s motion to dismiss for failure to exhaust administrative 21 remedies be DENIED. 22 PROCEDURAL BACKGROUND 23 Plaintiff Antonio Lasale Hannah is a state prisoner proceeding and 24 , who currently resides at San Diego Central Jail (“SDCJ”). ECF No. 1 at 1. Plaintiff 25 initiated this action on April 29, 2019 when he filed a complaint under the Civil Rights Act, 42 26 U.S.C. § 1983, alleging Eighth Amendment violations.1 See id. at 3, 14. On June 18, 2019, 27 1 Chief Judge Burns dismissed Plaintiff’s claims against Defendants South Bay Detention Facility 2 and the County of San Diego for failing to state a claim upon which relief may be granted. See 3 ECF No. 5 at 5-7. Additionally, Chief Judge Burns dismissed Plaintiff’s claims against Defendant 4 Sheriff Gore for failing “to show how, or to what extent, Sheriff Gore may be held individually 5 liable,” and holding that vicarious liability does not apply to § 1983 suits. Id. at 7. Therefore, 6 Plaintiff’s only remaining claim before the Court is against Defendant Corporal Ramirez alleging 7 unreasonable use of force in violation of Plaintiff’s Fourteenth Amendment. Id. at 8. 8 On September 18, 2019, Defendant Ramirez filed the instant motion to dismiss pursuant 9 to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust all administrative remedies. 10 ECF No. 9-1 at 1-2. On September 20, 2019, this Court set a briefing schedule governing 11 Defendant Ramirez’s motion. ECF No. 10. On October 7, 2019, Plaintiff filed on opposition to 12 Defendant Ramirez’s motion. ECF No. 11. On November 15, 2019, Defendant filed a reply to 13 Plaintiff’s opposition. ECF No. 14. 14 DISCUSSION 15 Defendant argues Plaintiff’s claims are barred as a matter of law because Plaintiff failed 16 to exhaust his administrative remedies. ECF No. 9-1 at 3. Specifically, Defendant states that 17 “nowhere in the Complaint does the [p]laintiff allege” exhaustion and, on the form complaint 18 that explicitly asked Plaintiff as much, Plaintiff did not respond. Id. at 5. Additionally, Defendant 19 argues that, “[t]o exhaust administrative remedies, a grievance must be factually sufficient to” 20 put the prison on notice “as to the nature of the wrong for which Plaintiff now seeks redress.” 21 ECF No.14 at 2-3. Defendant claims that Plaintiff fails to put jail officials on notice of Defendant’s 22 alleged assault in the grievances attached to Plaintiff’s Complaint and, therefore, “it cannot 23 reasonably be found that [Plaintiff] exhausted his administrative remedies.” Id. at 3. Finally, 24 Defendant argues that Plaintiff’s attached grievances fail “to indicate that no further grievances 25 or administrative remedies remained available to the plaintiff when he filed his lawsuit.” Id. at 26 27 pretrial detainee at the South Bay Detention Facility on the date of the onset of the alleged injury, therefore invoking claims under the Fourteenth Amendment, not the Eighth. See Castro 1 5. 2 In his opposition, Plaintiff contends that he “clearly answered the 1983 Complaint Form 3 on pg(6)2,” thereby showing that he exhausted all available administrative remedies. ECF No. 4 11 at 3. In support of his claim, Plaintiff states that he “attached [his] administrative remedy, 5 a Sheriff Department [G]rievance Form.” Id. Plaintiff argues that the “Sheriff Dept. Jail 6 grievance . . . was deemed not a grievance” thereby rendering his “administrative remedy 7 unavailable.” Id. Plaintiff notes that “jail officials routinely mark grievance ‘Not a grievance’ so 8 that they don’t have to process the grievance and perform an investigation,” which “ultimately 9 renders the administrative remedy unavailable.” Id. 10 In his reply, Defendant reiterates that Plaintiff did not fully complete the complaint, did 11 not state in the complaint that he had exhausted all administrative remedies, and did not attach 12 documents to either the complaint or his opposition that proved he had exhausted his 13 administrative remedies. ECF No. 14 at 1-4. Defendant argues that Plaintiff is required to prove 14 in his complaint that he exhausted all administrative remedies and Plaintiff did not do so. Id. 15 Defendant does not address Plaintiff’s argument that the administrative remedy process is 16 unavailable to him. 17 The Prison Litigation Reform Act (“PLRA”) requires that prisoners exhaust “such 18 administrative remedies as are available before commencing a suit challenging prison 19 conditions.” 42 U.S.C. § 1997(e)(a). In Albino v. Baca, the Ninth Circuit held that in order for 20 the Court to determine whether a plaintiff has exhausted his administrative remedies, the issue 21 of failure to exhaust must be raised in a motion for summary judgment as opposed to an 22 unenumerated Rule 12(b) motion. 747 F.3d 1162, 1170 (9th Cir. 2014). The Court explained 23 that failure to exhaust administrative remedies is an affirmative defense, therefore, making it 24 inappropriate to raise in a motion to dismiss. See id. at 1169. 25 26 2 Plaintiff attached multiple documents to his Complaint, including prison administrative forms 27 he filled out regarding his grievances. See ECF No. 1. These documents range from court forms, to an Incident Report, to Inmate Grievance forms. Id. It appears to the Court that 1 However, the Albino Court set forth the following exception in which a defendant may 2 allege failure to exhaust in a Rule 12(b)(6) motion: 3 In a few cases, a prisoner’s failure to exhaust may be clear from the face of the 4 complaint. However, such cases will be rare because plaintiff is not required to 5 say anything about exhaustion in his complaint. As the Court wrote in , “failure to exhaust is an affirmative defense under the PLRA, and inmates are not 6 required to specifically plead or demonstrate exhaustion in their complaints.” But only in those rare cases where a failure to exhaust is clear from the face of the 7 complaint, a defendant may successfully move to dismiss under Rule 12(b)(6). 8 9 Albino, 747 F.3d at 1169 (quoting Jones v. Bock, 549 U.S. 199, 215-16 (2007)) (emphasis 10 added). As a result, a motion to dismiss is proper only where the plaintiff’s complaint contains 11 facts establishing his failure to exhaust administrative remedies, resulting in no disputed facts 12 on the issue of exhaustion. See Albino, 747 F.3d at 1169. 13 Here, Plaintiff’s complaint does not address exhaustion. ECF No. 1. Plaintiff did not 14 complete Section D.2, which requests information on exhaustion of administrative remedies. Id. 15 at 15. The handwritten factual statement complains that the prison did not conduct a use of 16 force investigation and states that Plaintiff wrote grievances, but does not describe what efforts 17 Plaintiff made to exhaust his administrative remedies. Id. at 3-4, 9 & 14. The attached 18 grievances indicate that Plaintiff complained about several issues [id. at 7-8, 10-11] and that 19 one grievance related to Plaintiff’s claim that the prison was covering up his assault was 20 determined by a prison official to not constitute a grievance [id. at 7]. The staff member notes 21 that he/she “will look up case #” but does not check the box indicating what type of process 22 Plaintiff’s submission does constitute nor provide any follow up information. Id. at 7. In addition, 23 Plaintiff asserts in his opposition that he did exhaust his administrative remedies and that he 24 has additional documents supporting his claim. ECF No. 11 at 4. As such, this case is not one 25 of those rare cases in which the failure to exhaust is clear from the face of the complaint and 26 the Court RECOMMENDS that Defendant’s motion to dismiss be DENIED. If Defendant files 27 a summary judgment motion alleging failure to exhaust administrative remedies, Defendant 1 Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) (stating that “a defendant must 2 ||demonstrate that pertinent relief remained available, whether at unexhausted levels of the 3 || grievance process or through awaiting the results of the relief already granted as a result of that 4 || process"). 5 At the end of his opposition, Plaintiff requests leave to file an amended complaint. ECF 6 ||No. 11 at 4. If Plaintiff wants to file an amended complaint, he must file a motion requesting 7 || permission to do so and must attach the proposed amended complaint to the motion. See 8 ||CivLR15.1. Plaintiff must serve the motion on Defendant Ramirez. 9 CONCLUSION AND RECOMMENDATION 10 For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge 11 || issue an Order: (1) approving and adopting this Report and Recommendation; and (2) denying 12 || Defendants’ motion to dismiss. 13 IT IS HEREBY ORDERED that any written objections to this Report must be filed with 14 Court and served on all parties no later than January 24, 2020. The document should 15 captioned “Objections to Report and Recommendation.” 16 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 17 ||and served on all parties no later than February 24, 2020. The parties are advised that 18 || failure to file objections within the specified time may waive the right to raise those objections 19 appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 20 IT 1S SO ORDERED. 21 ||Dated: 1/2/2020 x, be Me ore 22 Hon. Barbara L. Major United States Maaistrate Judae 23 24 25 26 27 28