Dozier v. Neven et al, No. 2:2008cv00625 - Document 28 (D. Nev. 2010)

Court Description: ORDER Granting 21 Motion to Dismiss without Prejudice and Finding as Moot 26 Motion Requesting Full Discovery. Signed by Judge Gloria M. Navarro on 9/30/10. (Copies have been distributed pursuant to the NEF - ASB)
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Dozier v. Neven et al Doc. 28 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ESAU DOZIER, 4 Plaintiff, 5 vs. 6 DWIGHT NEVEN, et al., 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:08-cv-00625-GMN-GWF ORDER 9 This case arises out of an attack against Plaintiff by another inmate at the High Desert 10 11 State Prison (“HDSP”). Pending before the Court is Defendant Dwight Neven’s Motion to 12 Dismiss (ECF No. 21). For the reasons given herein, the Court grants the motion without 13 prejudice. 14 I. 15 16 FACTS AND PROCEDURAL HISTORY On May 9, 2006, Plaintiff Esau Dozier was attacked with a box cutter by fellow inmate and non-party Odell McCoy. (Second Am. Compl. 4-A, ECF No. 16.) Plaintiff alleges that 17 Defendants are liable for constitutional negligence in providing box cutters at the HDSP canteen 18 and for deliberate indifference for failure to protect Plaintiff from McCoy. 19 20 21 Plaintiff sued Defendants Dwight Neven (HDSP Warden), Doe Defendants Mark LNU, Joe LNU, and Joann LNU (HDSP canteen workers), and the Medical Response Team (“MRT”) 22 in this Court on May 14, 2008. (See Compl., ECF No. 1.) The Second Amended Complaint 23 (“SAC”) alleges three causes of action: (1) Eighth and Fourteenth Amendment violations 24 (against Dwight Neven); (2) Eighth and Fourteenth Amendment violations (against the Doe 25 Defendants); and (3) Eighth and Fourteenth Amendment violations (against the MRT). These Page 1 of 8 1 claims are all brought under 42 U.S.C. § 1983. 2 3 4 Neven has moved to dismiss the SAC: (1) under the statute of limitations; (2) for failure to exhaust administrative remedies; and (3) for failure to state a claim. The Court will address the first two, and need not reach the third. 5 III. LEGAL STANDARDS 6 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 7 that fails to state a claim upon which relief can be granted. See N. Star Int=l. v. Ariz. Corp. 8 9 10 Comm=n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 11 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is 13 sufficient to state a claim, a court takes all material allegations as true and construes them in the 14 light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 15 1986). The court, however, is not required to accept as true allegations that are merely 16 17 conclusory, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 18 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation 19 is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 20 21 22 550 U.S. at 555). AGenerally, a district court may not consider any material beyond the pleadings in ruling 23 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 24 complaint may be considered on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner 25 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, Adocuments Page 2 of 8 1 whose contents are alleged in a complaint and whose authenticity no party questions, but which 2 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) 3 motion to dismiss@ without converting the motion to dismiss into a motion for summary 4 5 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of Amatters of public record.@ Mack v. S. Bay Beer Distrib., 6 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside 7 of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See 8 9 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). If the court grants a motion to dismiss, it must then decide whether to grant leave to 10 11 amend. The court should Afreely give@ leave to amend when there is no Aundue delay, bad 12 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 13 virtue of . . . the amendment, [or] futility of the amendment . . . .@ Fed. R. Civ. P. 15(a); Foman v. 14 Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that 15 the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight 16 17 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). IV. ANALYSIS 18 A. Statute of Limitations 19 The applicable statute of limitations for section 1983 actions, regardless of the facts or 20 21 22 23 legal theory underlying a particular case, is the forum state’s statute of limitations for personal injury actions. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). 1 In Nevada, the statute of limitations for filing a personal injury action is 24 25 1 Plaintiff’s citation to Mason v. Schaub, 564 F.2d 308 (9th Cir. 1977) in support of the proposition that the applicable statute of limitations should be three years is not persuasive here, as that case was effectively overruled by Wilson eight years after it was decided. Page 3 of 8 1 two years. Nev. Rev. Stat. § 11.190(4)(e); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989). 2 Federal courts also apply the forum state’s law regarding tolling--including equitable tolling-- 3 when it is not inconsistent with federal law. See Fink, 192 F.3d at 913–14. Federal law does, 4 however, determine when a claim accrues for a section 1983 action. See Elliott v. City of Union 5 City, 25 F.3d 800, 801–02 (9th Cir. 1994). A claim accrues when the plaintiff knows, or should 6 know, of the injury on which the cause of action is based. See Kimes v. Stone, 84 F.3d 1121, 7 1128 (9th Cir. 1996). 8 9 10 Plaintiff alleges that the acts that violated his civil rights occurred prior to or on May 9, 2006. Due to the applicable two-year statute of limitations in Nevada, Plaintiff would ordinarily 11 have had until May 10, 2008 to file a claim based on these acts. However, Plaintiff did not file 12 his lawsuit until May 14, 2008--four days after the applicable deadline. In light of this, 13 Defendant has moved to dismiss Plaintiff’s complaint as barred by the statute of limitations. 14 15 16 17 When a motion to dismiss is brought on the ground that the Plaintiff’s complaint is untimely, “a complaint cannot be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995). “The sole issue is whether the complaint, 18 liberally construed in light of our ‘notice pleading’ system, adequately alleges facts showing the 19 potential applicability of the equitable tolling doctrine.” Cervantes v. City of San Diego, 5 F.3d 20 1273, 1277 (9th Cir. 1993). Here, Plaintiff has alleged facts sufficient to show the potential 21 22 applicability of the equitable tolling doctrine. 23 In determining whether to equitably toll a statute of limitations for a lawsuit filed under 24 section 1983, a court applies the tolling doctrines of the forum state. See Trimble v. City of Santa 25 Rosa, 49 F.3d 583, 585 (9th Cir. 1995); Cervantes, 4 F.3d at 1275. In Nevada, “in situations Page 4 of 8 1 where the danger of prejudice to the defendant is absent, and the interests of justice so require, 2 equitable tolling of the limitations period may be appropriate.” Sieno v. Employers Ins. Co. of 3 Nevada, 111 P.3d 1107, 1112 (Nev. 2005) (internal quotation marks omitted). Though this 4 doctrine was originally adopted in the context of antidiscrimination suits, it has since been 5 extended to operate in other areas of law. Id.; U.S. Equal Employment Opportunity Commission 6 v. Caesars Entertainment, No. 02:05-cv-00427-LRH-PAL, 2006 WL 47632, at *3 (D. Nev. Apr. 7 25, 2006). One instance in which this Court has found it to apply is during the pendency of 8 9 10 administrative remedies made mandatory by the Prison Litigation Reform Act (“PLRA”) at 42 U.S.C. § 1997e. Wisenbaker v. Farwell, 341 F. Supp. 2d 1160, 1165 (D. Nev. 2004). In 11 Wisenbaker, the Court tolled the statute of limitations for the period of time during which the 12 prisoner-plaintiff was pursuing administrative remedies for the civil rights violations he alleged, 13 thereby effectively lengthening the statute of limitations. Id. Because this is also a prisoner civil 14 rights case, Wisenbaker is directly applicable here. Therefore, just as the statute of limitations 15 was tolled while the prisoner pursued administrative remedies in that case, so too should the 16 17 statute be tolled for the period during which Plaintiff was pursuing administrative remedies in this case, if Plaintiff actually did so. 18 From the face of the Complaint, it appears as though Plaintiff did seek administrative 19 remedies before filing this lawsuit. On page eight of the section 1983 form that serves as the 20 template for his Second Amended Complaint, Plaintiff alleges--and, at this stage in the 21 22 proceedings, the Court assumes to be true--that he filed three grievances related to the 23 circumstances underlying this lawsuit: the first on May 5, 2006; the second on June 6, 2006; and 24 the third on June 11, 2006. (ECF No. 16.) Reading these allegations with the required liberality, 25 this Court cannot say that Plaintiff will be unable to establish that the statute of limitations was Page 5 of 8 1 tolled for more than the four days past which Defendant claims this lawsuit exceeded the statute 2 of limitations. If Plaintiff is able to show that he had to wait even two days before he received a 3 response to each of his grievances, then this lawsuit is not time-barred, as the statute of 4 limitations would have been tolled for six days. Accordingly, the Court denies Defendant’s 5 motion to dismiss on the grounds that this suit violated the statute of limitations. 6 B. Failure to Exhaust Administrative Remedies 7 In the Ninth Circuit, the failure to exhaust administrative remedies that are not 8 9 10 jurisdictional is treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion, rather than a Rule 12(b)(6) motion or a motion for summary judgment. Wyatt v. 11 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to 12 exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed 13 issues of fact. Id. at 1119–20. If the court concludes that the prisoner has not exhausted 14 nonjudicial remedies, then the proper remedy is dismissal of the claim without prejudice. Id. at 15 1120. 16 17 Under PLRA, a prisoner must exhaust administrative remedies before bringing a lawsuit concerning prison conditions. 42 U.S.C. § 1997e(a). Merely filing a few grievances is not 18 enough, if the procedures of the department of corrections require more. The exhaustion 19 requirement “applies to all inmate suits about prison life, whether they involve general 20 circumstances or particular episodes, and whether they allege excessive force or some other 21 22 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (unanimously affirming a district court’s 23 dismissal of section 1983 claims based on an alleged beating by prison guards, because the 24 plaintiff failed to exhaust administrative remedies). Failure to exhaust under section 1997e(a) is 25 not a pleading requirement, but an affirmative defense, with the burden of proof on a defendant. Page 6 of 8 1 2 3 4 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Defendant has attached the affidavit of Deputy Attorney General Jill C. Davis in support of the authenticity of a report of Plaintiff’s grievance records (“Plaintiff’s Inmate Issue History”) that is also attached. (See Davis Aff., ECF No. 21-2 at 2; Dozier Inmate Issue History, ECF 21-2 5 at 3). Plaintiff’s Inmate Issue History indicates the following grievance on June 19, 2006: 6 “Inmate is complaining that he should get compensation from the state for his injuries because 7 the state failed to pat down an inmate and that is how he got the razor.” (See id.). However, this 8 9 10 grievance, without more, is insufficient to exhaust the administrative remedies available to Plaintiff. As Defendant notes, Administrative Regulation 740 (“AR 740”) requires three levels 11 of appeal. First, an inmate must file an Informal Grievance. (See AR 740 §, ECF No. 21- 12 1), which Plaintiff appears to have done here, (see Dozier Inmate Issue History (listing the 13 relevant grievance as “IF” level, for “informal”)). An Informal Grievance is to be reviewed by 14 caseworkers with the help of other personnel. (See AR 740 § If denied, an inmate must 15 file a First Level Grievance. (See id. § The First Level Grievance is to be addressed by 16 17 the warden of the institution where the inmate is incarcerated. (See AR 740, § If that is denied, an inmate must file a Second Level Grievance, to be addressed by one of several state- 18 level officials at the Nevada Department of Corrections. (See AR 740, § Plaintiff’s 19 Inmate Issue History indicates no grievances above the informal level, meaning that he never 20 undertook the second and third steps required for a complete administrative appeal. Plaintiff’s 21 22 conclusory allegations in his Response (ECF No. 25) that he “did in fact exhaust all 23 administrative remedies” are not sufficient to rebut this evidence of him failing to exhaust his 24 nonjudicial remedies. Thus, the Court finds that Plaintiff failed to exhaust his administrative 25 remedies and grants Defendant’s Motion to Dismiss without prejudice. Page 7 of 8 1 CONCLUSION 2 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF No. 21) is 3 4 GRANTED without prejudice. This Order renders moot Plaintiff’s Motion Requesting Full Discovery (ECF No. 26). 5 DATED this 30th day of September, 2010. 6 7 8 9 ________________________________ Gloria M. Navarro United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 of 8