-CMK (PC) Cook v. Rios, et al, No. 2:2010cv01365 - Document 23 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 01/23/12 recommending that defendant's motion to dismiss 19 be granted. MOTION to DISMISS 19 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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-CMK (PC) Cook v. Rios, et al Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC DARNELL COOK, 12 13 14 15 Plaintiff, vs. FINDINGS AND RECOMMENDATIONS DONAHOO, Defendant. 16 17 No. CIV S-10-1365-LKK-CMK-P / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is defendant’s motion to dismiss (Doc. 19). 19 Defendant argues, among other things, that plaintiff failed to exhaust his administrative remedies 20 prior to filing suit. 21 22 23 I. STANDARDS FOR MOTION TO DISMISS A motion to dismiss based on a prisoner’s failure to exhaust administrative 24 remedies is properly the subject of an unenumerated motion under Federal Rule of Civil 25 Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “In deciding a 26 motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the 1 Dockets.Justia.com 1 pleadings and decide disputed issues of fact.” Id. at 1119-20. Where the court looks beyond the 2 pleadings to a factual record in deciding the motion to dismiss, which is “. . . a procedure closely 3 analogous to summary judgment,” the court must assure that the plaintiff has fair notice of his 4 opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in 5 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 6 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to 7 exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court 8 concludes that administrative remedies have not been exhausted, the unexhausted claim should 9 be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007). 10 11 II. DISCUSSION 12 Prisoners seeking relief under § 1983 must exhaust all available administrative 13 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 14 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 15 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 16 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 17 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 18 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 19 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 20 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 21 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 22 grievance process for exhaustion to be considered adequate because the applicable procedural 23 rules that a prisoner must follow are defined by the particular grievance process, not by the 24 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 25 all, claims are unexhausted. 26 /// 2 1 In this case, defendant submits evidence in the form of declarations from the 2 relevant prison officials who oversee the appeals process indicating that plaintiff exhausted his 3 inmate grievance through the final level of review on December 2, 2010 – six months after this 4 lawsuit was filed. Because exhaustion did not precede the filing of the complaint, this action 5 must be dismissed without prejudice. 6 7 8 9 III. CONCLUSION Based on the foregoing, the undersigned recommends that defendant’s motion to dismiss (Doc. 19) be granted. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court. Responses to objections shall be filed within 14 days after service of 14 objections. Failure to file objections within the specified time may waive the right to appeal. 15 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 18 19 DATED: January 23, 2012 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 3

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