Jensen v. Knowles, Case No. 2:02-cv-02373 JKS P.

• Decision Date: 09 December 2008
• Docket Number: Case No. 2:02-cv-02373 JKS P.
• Citation: 621 F.Supp.2d 921
• Parties: Paul William JENSEN, Plaintiff, v. M.E. KNOWLES, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

621 F.Supp.2d 921

Paul William JENSEN, Plaintiff, v. M.E. KNOWLES, et al., Defendants.

Case No. 2:02-cv-02373 JKS P.

United States District Court, E.D. California.

December 9, 2008.

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Paul William Jensen, Corcoran, CA, pro se.

Misha D. Igra, California Department of Justice, Office of the Attorney General, Sacramento, CA, for Defendants.

ORDER

JAMES K. SINGLETON, JR., District Judge.

This Order addresses two motions currently before the Court. First is a motion to dismiss claims against Defendants Arthur, Brown, Hettema, Sainz, Silva, Knowles, Williams, Seinwirth, Cherry, Kernan, Hansen, Feltner and Karelas for failure to exhaust administrative remedies. Docket Nos. 98 (Mot.); 98-2 (Mem.); 99 (Opp'n); 100 (Reply). Second is Plaintiff's motion requesting further efforts to serve Defendant Wathen. Docket No. 97.

I—BACKGROUND

Plaintiff, a state prisoner proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on October 29, 2002. See Docket No. 1. At that time, he was incarcerated at Mule Creek State Prison ("MCSP"). After several attempts at amending the initial complaint, this Court found that Plaintiff could proceed on three claims: (1) prison officials denied Plaintiff a medically necessary diabetic diet in violation of the Eighth Amendment; (2) prison officials confiscated Plaintiff's Bibles and Christian doctrine books in violation of the First Amendment; and (3) prison officials violated Plaintiff's Eighth Amendment right by allegedly forcing Plaintiff to reside in a cell with another prisoner who smoked. Docket No. 28. During this time, Plaintiff was transferred from MCSP to Pleasant Valley State Prison. See Docket No. 8.

In November 2004, Defendants moved for revocation of Plaintiff's in forma pauperis ("IFP") status and dismissal of the action. Docket No. 38. Defendants argued that because of his prior frivolous litigation, Plaintiff was not entitled to IFP status in this case. Id. The Court found that Plaintiff was not entitled to IFP status under the "three strikes" provision of 28 U.S.C. § 1915(g). Docket No. 45 at 8. Further, the Court found that Plaintiff could not satisfy the imminent danger exception to the "three strikes" bar because he was no longer incarcerated at MCSP where the alleged conduct had been occurring. Id.

The Ninth Circuit Court of Appeals reversed the dismissal and remanded the action to this Court with instructions to consider whether Plaintiff satisfied the imminent danger exception at the time the initial complaint was filed. Docket No. 62. This Court found that Plaintiff's first cause of action regarding denial of a prescribed diabetic meal met the imminent danger standard. Docket No. 81. Defendants answered the complaint as directed and subsequently filed the motion to dismiss at issue. See Docket Nos. 85 and 98. II—Defendants' Motion to Dismiss

1. Legal Standard

The Ninth Circuit has held that administrative exhaustion is a defense which "should be treated as a matter in abatement subject to an unenumerated Rule 12(b) motion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003). "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. If a court finds that a plaintiff has failed to exhaust, "the proper remedy is dismissal of the claim without prejudice." Id.

Several recent decisions from the district courts for the Eastern District of California and the District of Massachusetts have expressed concern that Wyatt has been overruled sub silentio by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). See e.g., Chatman v. Johnson, No. CIV S-06-0578, 2007 WL 2023544 (E.D.Cal.); Gregory v. Adams, No. CIV S-05-1393, 2007 WL 2481769 (E.D.Cal.); Maraglia v. Maloney, 499 F.Supp.2d 93 (D.Mass.2007). The essential concern is that the Supreme Court's clarification that failure to exhaust is an affirmative defense now requires the defense to be considered on summary judgment rather than as an unenumerated 12(b) motion. See Gregory, 2007 WL 2481769 at 3. Although both procedures allowed courts to move beyond the pleadings, disputed issues of fact formerly decided by the court as matters in abatement would necessarily be reserved for trial, and perhaps even a jury, because they are unfit for summary judgment. See Maraglia, 499 F. Supp 2d at 97-98 (finding that disputed issues of fact related to whether plaintiff prisoner had exhausted administrative remedies were questions reserved for a jury).

This Court believes Wyatt continues to be good law. The Supreme Court's formal recognition of failure to exhaust as an affirmative defense does not necessarily alter the burden imposed on defendants by Wyatt of "raising and proving the absence of exhaustion." Wyatt, 315 F.3d at 1119. In fact, the Supreme Court cited Wyatt as an example of treating exhaustion as an affirmative defense. Jones, 127 S.Ct. at 915 n. 2. The formal nomenclature used by the Court simply does not detract from the Ninth Circuit's reasoning in Wyatt that failure to exhaust is a matter in abatement because it does not go to the merits of plaintiff's claim. See Wyatt, 315 F.3d at 1119. Further, even if Wyatt were overruled by Jones, the conclusion of the court in Maraglia that disputed facts concerning exhaustion must be put to a jury does not make sense in light of the equitable nature of exhaustion doctrine. See 12-57 Moore's Federal Practice—Civil § 57.23 (Matthew Bender 3d ed.).

Finally, the Court notes that Defendants' motion to dismiss has been filed after the responsive pleading. See Docket Nos. 85 and 98. There is clear authority in the Ninth Circuit for the proposition that a motion to dismiss alleging one of the enumerated defenses under Rule 12(b) is untimely and must be recharacterized and considered under Rules 12(c) or 56. See, e.g., Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir.2004); Aetna Life Ins., Co. v. Alla Medical Services Inc., 855 F.2d 1470, 1474 (9th Cir.1988). The Court does not believe the timing requirement must be applied to a motion under the unenumerated portion of Rule 12(b).

Rule 12(b) itself appears to specify the timing requirement only for the seven enumerated defenses: "A motion asserting any of these defenses must be made before pleading ..." Fed. R. Civ. P. 12(b) (emphasis added). The procedural posture of Wyatt itself supports this conclusion. The exhaustion claim in Wyatt was raised by a motion for summary judgment after the responsive pleading had been filed. See Civil Docket, Wyatt v. Terhune, No. 2:99-cv-00503 (E.D.Cal.). The Ninth Circuit still counseled that the failure to exhaust issue should be considered under Rule 12(b) rather than Rule 56 because summary judgment is "on the merits" and failure to exhaust is a matter in abatement. Wyatt, 315 F.3d at 1119. This Court will thus consider the present motion as a motion to dismiss under the unenumerated portion of Rule 12(b) in accordance with Wyatt.

2. Exhaustion of Administrative Remedies

A prisoner may not bring an action under 42 U.S.C. § 1983 until he has exhausted administrative remedies. Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The law requires "proper exhaustion," which means "complet[ing] the administrative review process in accordance with the applicable procedural rules." Jones, 127 S.Ct. at 922-23 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)). "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id. at 923.

The State of California provides its prisoners and parolees the right to administratively appeal "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal.Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies, a prisoner must proceed through an initial informal level, and three formal levels of review, culminating in a Director's Level Decision. Id. at § 3084.5; Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal.1997). The grievance process is initiated by filing a CDC Form 602, which requires the prisoner "to describe the problem and action requested." Id. at § 3084.5(a). A final decision at the Director's level satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). See Barry, 985 F.Supp. at 1237-38.

3. Discussion

Defendants argue Plaintiff's second and third claims against the Defendants should be dismissed because Plaintiff failed to properly exhaust the prison grievance process in several respects.

A. Plaintiff's second claim was filed prior to exhaustion of his prison grievance

Defendants argue that pursuant to 42 U.S.C. § 1997e(a) Plaintiff's second claim must be dismissed because it was initiated two days prior to the conclusion of the prison grievance process. Docket No. 98-2 at 4. Under current Ninth Circuit law, it is axiomatic that 42 U.S.C. § 1997e(a) requires a claim be dismissed without prejudice where it was filed prior to exhaustion of the prison grievance remedies, even where the prisoner has exhausted his remedies during the pendency of his action. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002); Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). The record clearly establishes that Plaintiff commenced the litigation at least two days before the grievance process was exhausted, as evidenced by Plaintiff's initial complaint filed on October 29, 2002, and the Director's level decision as to Plaintiff's First Amendment claim issued on October 31, 2002. See Docket Nos. 1; 98-3 at 11. Accordingly, Plaintiff's second...