Opinion
No. C 03-962 SI (pr)
November 24, 2003
JUDGEMENT
This action is dismissed without prejudice to plaintiff filing a new action after he exhausts his administrative remedies as to all claims against all defendants.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL INTRODUCTION
Gumesindo D. Rivera, currently incarcerated at the Correctional Training Facility in Soledad, California, filed a pro se civil rights action under 42 U.S.C. § 1983. The court reviewed the complaint pursuant to 28 U.S.C. § 1915 A and ordered it served on several defendants. Defendants now move to dismiss the complaint, arguing that plaintiff failed to exhaust administrative remedies, plaintiff cannot state a claim for mental injuries, plaintiff has not shown an Eighth Amendment violation, and defendants are entitled to qualified immunity. The court now dismisses the complaint for failure to exhaust administrative remedies.BACKGROUND
Rivera alleges in his complaint that he was subjected to excessive force by correctional officers at the Correctional Training Facility. He alleges that on April 22, 2002, after he fought with another inmate, he was tackled by correctional officer ("C/O") Cook. Rivera alleges that he "did not resist at all" and was handcuffed by Cook "without any resistance or violent behavior." Complaint, p. 3. Thereafter, C/Os Vasquez, Esparza and Marquez allegedly applied unnecessary force to him while he was handcuffed, and correctional sergeant Parks ordered C/O Cook to force open Rivera's mouth when he would not answer questions. Cook forced his mouth open with such pressure and pain that Rivera's mouth bled. Rivera alleges that he was bruised in various places and had bleeding gums. After he received medical attention, Rivera was placed in a holding cell for six hours and then put in administrative segregation.
Defendants contend that the use of force occurred when Rivera slashed another inmate with a razor blade and defendants responded to the incident. Defendants contend that correctional officer Cook grabbed Rivera and took him down to the ground, and handcuffed him. Defendants also suggest that Rivera's mouth was forced open so they could look for the weapon used by Rivera to slash the other inmate. They also argue that Rivera's injuries were de minimis and consistent with Cook subduing him by forcing him to the ground.
DISCUSSION
A. Exhaustion Of Administrative Remedies
1. The Mechanism For Raising Exhaustion Issues
A prisoner's failure to exhaust administrative remedies is a matter in abatement. Defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.) cert. denied 124 S.Ct. 50 (2003). In Wyatt v. Terhune, 315 F.3d at 1119, the Ninth Circuit explained that the proper way to establish nonexhaustion was by an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. This was so because the "failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement." Id. The summary judgment procedure is a decision on the merits while a dismissal for failure to exhaust is not on the merits. "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 1119-20, citing Ritza v. Int'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988). Ritza explained that "[t]he distinction between summary judgment and dismissal for matters in abatement bears on the district court's authority to resolve factual disputes and thus affects the standard of review to be applied by this court." Id. at 369. The court can decide factual issues in a jurisdictional or related type of motion because there is no right to a jury trial as to that portion of the case, unlike the merits of the case (where there is a right to a jury trial). See id. Wyatt and Ritza allow this court to resolve factual disputes, but only with regard to the exhaustion issue. An unenumerated Rule 12(b) motion does not open the door for the court to make factual determinations about matters not related to the exhaustion issue. A defendant who wants to make an argument about the merits of a claim must do so in a motion for summary judgment and comply with the procedures under Federal Rule of Civil Procedure 56.
The motion is called an "unenumerated" Rule 12(b) motion because it is not brought under any one of the seven numbered sub-parts of Rule 12(b) of the Federal Rules of Civil Procedure. See Ritza, infra, 837 F.2d at 369.
2. Exhaustion
"No action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997).
Two separate exhaustion questions must be answered in this case: Does the rejection of an inmate appeal as untimely satisfy the exhaustion requirement? Does a grievance that does not identify all defendants satisfy the exhaustion requirement. The answers are "yes" to the first question and "no" to the second question.
Rivera's inmate appeal was rejected at the highest level because it was not timely filed. As a result, this case "turns not on whether exhaustion is required, the answer to which is well settled, but onwhat exhaustion requires." Thomas v. Woolum, 337 F.3d 720, 722 (6th Cir. 2003) (emphasis in original). Courts have differed over the effect of an appeal rejected as untimely. For example, one district court has held that a prisoner had no "available" administrative remedies when the time limits for filing a prison grievance had expired, and thus was not required to exhaust his claims before filing his civil rights action, see Johnson v. True, 125 F. Supp.2d 186, 189 (W.D. Va. 2000), while another district court faced with a similar situation dismissed the complaint but indicated the prisoner could return to federal court if denied leave to file an untimely prison grievance, see Graham v. Perez, 121 F. Supp.2d 317, 322 (S.D.N.Y. 2000). There is no controlling precedent on the effect of a rejection of an inmate appeal as untimely. The issue was extensively explored in Thomas v. Woolum, 337 F.3d 720, a decision that persuades this court.Thomas explained why the rejection of an inmate appeal as untimely satisfied the exhaustion requirement.
[The prisoner] had quite literally exhausted his ability to go any further within the internal prison system. There were no more avenues to travel within the state prison system. If [the prisoner] had failed to file, the state prison system would never have had any opportunity to review the claim. However, by filing, [the prisoner] gave the state an opportunity to hear the claim and, by appealing, [the prisoner] gave the state the opportunity to reconsider its decision. [The prisoner] received the benefit of the potential that the state would hear his grievance by waiving me procedural guidelines, which the state could have done if it wanted to avoid federal court. The state received the benefit of dealing with the case internally if it so desired.Id. at 727. The state cannot strip the federal courts of their power to grant relief under § 1983 by failing to grant relief on the merits or by choosing not to grant relief because of procedural deficiencies (such as untimeliness) in the inmate's appeal. See id. at 733. Like the Thomas court, this court believes the prisoner must actually file the appeal and get rejected as untimely; he cannot anticipate that the process will be futile and bypass it. But once he has filed the appeal and has been rejected at the highest level available, he has done enough to exhaust the administrative remedies, regardless of whether his appeal is granted or denied on the merits or rejected for a procedural reason. Rivera reached the termination point of the administrative appeal process when his appeal was rejected at the director's level as untimely. He had satisfied the § I997e exhaustion requirement as to the claim contained in his inmate appeal. That begs the question of what claim was in the appeal.
The only defendant mentioned in Rivera's grievance was sergeant Parks. Although Rivera had received reports in April and May 2002 identifying the other defendants as participants in the incident, Rivera's grievance mentioned only sergeant Parks by name. See Childress Decl., Exh. A. He did not give prison officials a chance to respond to his claim against the four defendants other than sergeant Parks. His claims against those other defendants are therefore not exhausted. Rivera has presented a mixed complaint, with a claim against one defendant exhausted and claims against other defendants not exhausted.
The exhaustion requirement applies to all claims in a complaint; it is not enough to exhaust administrative remedies as to one claim and then use that exhaustion as a jurisdictional hook on which to hang many unexhausted claims in a federal civil rights action. "When multiple prison condition claims have been joined, as in this case, the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims." Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D.N. J. 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule). But see Johnson v. True, 125 F. Supp.2d at 188 . Rivera has presented a mixed complaint, containing both exhausted and unexhausted claims. He failed to, but must, exhaust administrative remedies as to all claims against all defendants before filing a federal civil rights action. This total exhaustion rule best promotes the purposes of the exhaustion requirement, which include allowing a prison to take responsive action, filtering out frivolous cases, and creating administrative records. See Porter v. Nussle, 534 U.S. 516, 523-25 (2002).
It may well be that Rivera's administrative appeal concerning the other defendants' actions in the incident will be rejected as untimely. However, Rivera cannot declare the endeavor futile before he tries it and bypass the administrative appeal process. He must give the prison officials the opportunity to decide whether they want to ignore the untimeliness problem and to reach the merits of the administrative appeal. The complaint will be dismissed without prejudice to Rivera filing a new action after he exhausts his administrative remedies as to all claims against all defendants.
B. Defendants' Rule 12(b)(6) Motion
Defendants' Rule 12(b)(6) motion has a critical flaw concerning the use of documents other than a complaint in a Rule 12(b)(6) motion. This flaw precludes granting the Rule 12(b)(6) motion.
Defendants correctly assert that the court may consider material other than the complaint itself without converting a Rule 12(b)(6) motion into a summary judgment motion, i.e., the court can consider (1) a document not physically attached to the complaint if the document's authenticity is not contested and plaintiff's complaint necessarily relies on it and (2) the full text of a document where the complaint quotes only part of it. Motion To Dismiss, p. 6. The court parts company with defendants when it comes to the use the court can make of statements in documents other than the complaint itself.
Although the court can look to documents outside the complaint in deciding a Rule 12(b)(6) motion, it can only do so for a limited purpose. The limits were explained in another case where defendants tried to use Federal Rule of Civil Procedure 10(c) — "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes" — to impute to the plaintiff an entire report written by a defendant simply because the plaintiff's complaint referred to the report.
[T]he defendants assume that Rule 10(c) requires a plaintiff to adopt as true the full contents of any document attached to a complaint or adopted by reference. This is not a proper reading of the rule. Courts have found that "[i]f the appended document . . . reveals facts which foreclose recovery as a matter of law, dismissal is appropriate," Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (prospectus attached to complaint alleging bond purchase based on material misrepresentations). An appended document will be read to evidence what it incontestably shows once one assumes that it is what the complaint says it is (or, in the absence of a descriptive allegation, that it is what it appears to be). For example, a written contract appended to the complaint will defeat invocation of the Statute of Frauds, and a document that discloses what the complaint alleges it concealed will defeat the allegation of concealment. By the same token, however, a libel plaintiff may attach the writing alleged in the complaint to be libelous without risk that the court will deem true all libels in it. Similarly, a receipt for goods, alleged in the pleading to have been forged, may or may not evidence forgery on its face, but it does not concede delivery of goods for pleading purposes.Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir. 1995). "Rather than accepting every word in a unilateral writing by a defendant and attached by a plaintiff to a complaint as true, it is necessary to consider why a plaintiff attached the documents, who authored the documents, and the reliability of the documents."Northern Indiana Gun Outdoor Shows. Inc. v. City of South Bend, 163 F.3d 449, 455 (7th Cir. 1998) (declining to apply blanket rule that document attached is adopted in toto "in the case of letters written by the opposition for what could be self-serving purposes").
Here, defendants assert that "[b]ecause plaintiff necessarily relies on the Rules Violation Report in support of his allegations of the involvement of the defendants in the April 22, 2002 incident, and of his alleged non-resistive behavior, the Court may consider defendants1 Exhibit B [i.e., the Rules Violation Report] in ruling on this Motion to Dismiss, without converting it into a motion for Summary Judgment." Motion To Dismiss, p. 7. They then make arguments that attribute to Rivera the defendants' statements in the exhibit and their interpretation of the exhibit. Defendants thus argue that "defendant Cook needed to use physical force to restrain plaintiff because he was assaulting another inmate," and defendants' actions in forcing plaintiff's mouth open were "justified in order to locate the weapon used by the plaintiff in assaulting inmate Valenzuela." Motion To Dismiss, pp. 10, 11. They also treat the nurse's report as the exclusive list of the extent and severity of Rivera's physical injuries. See id at 8. Nothing in the complaint evidences any intent by Rivera to adopt the defendants' statements in the rule violation report or the inmate appeal responses or the medical report as true or as reflective of his position. And the documents are not a necessary part of his claim: he could sue with or without them. The defendants' statements are no more attributable to Rivera than are Rivera's statements in the same documents attributable to defendants. That is, defendants doubtless would protest if the court determined that, by simply directing the court's attention to Exhibit A to the Complaint, they were deemed to have adopted as true Rivera's statement that while he was "handcuffed on the floor proned out not giving any physical resistance my rights were violated in certain ways." Complaint, Exh. A., p. 1. The rule that allows the court to look beyond the complaint does not require the court to attribute to a plaintiff everything in a document written by a third party or a defendant. But that is exactly what the defendants appear to be trying to do.
The judicial notice process would not cure the defect in defendants1 motion. The court can judicially notice facts that are not subject to reasonable dispute in that they are generally known within the territorial jurisdiction of the court or they are capable of ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). The court cannot take judicial notice that any facts recited in the rule violation report (including the portions describing the parties1 statements during the investigation and at the hearing on the rule violation report) are true. "As a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause men before it."M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983): see also Wyatt v. Terhune. 315 F.3d at 1114 n. 5 ("Factual findings in one case ordinarily are not admissible for their truth in another case through judicial notice"); Taylor v. Charter Medical Corp., 162 F.3d 827, 829-31 (5th Cir. 1998) (court could not take judicial notice of another court's finding that a defendant was a state actor; the determination was a legal conclusion rather than an adjudicative fact and in any event was not beyond reasonable dispute). If the court cannot take judicial notice of a factual finding in other court cases, it certainly cannot take judicial notice of a factual finding in the less procedurally rigid prison disciplinary hearing. Additionally, assertions in documents filed with a court or in an administrative proceeding are not judicially noticeable just because they are in the file. "There is a mistaken notion that taking judicial notice of court records . . . means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. The concept of judicial notice requires that the matter which is the proper subject of judicial notice be a fact mat is not reasonably subject to dispute. Facts in the judicial record that are subject to dispute, such as allegations in affidavits, declarations, and probation reports, are not the proper subjects of judicial notice even though they are in a court record." B. Jefferson, California Evidence Benchbook (3d ed. 2003 update), § 47.10.
Not only does the rule of adoption of the entire document generally not make sense where the plaintiff has not adopted the entirety of a document written by defendants, it would be particularly unwise to apply it in apro se prisoner action. Such a use of the rule would be inconsistent with the Ninth Circuit's repeated and clear command thatpro se pleadings be liberally construed. And such a use of the rule would discourage pro se litigants from attaching anything or referring to any documents in their complaints. The attachment of documents to prisoner complaints often aids in the understanding of the claim as the documents sometimes can put allegations in context when prisoners — many of whom have little formal education, many of whom have little access to legal materials, and most of whom have no formal legal (let alone pleading) training — provide only a sketchy description of their problems. Although the court won't cobble together a claim from the exhibits where no claim is actually pled, the exhibits sometimes make the allegations understandable. The court is not eager to impose a technical pleading requirement that would discourage the sometimes helpful practice of attaching rule violation reports and inmate appeals to pro se prisoner complaints
Finally, even if defendants were correct on the law (which they aren't), the exhibits do not say what defendants represent on the mouth-squeezing part of plaintiff's claim. Plaintiff indicates in his complaint and inmate appeal that his mouth was forced open because he would not answer questions. Defendants state in their motion that their actions in forcing plaintiff's mouth open were "justified in order to locate the weapon used by the plaintiff in assaulting inmate Valenzuela" because they "could not have known that plaintiff was not hiding the weapon in his mouth," and "needed to locate the weapon to prevent another inmate from finding it first and causing any additional injuries to other inmates or the prison staff." Motion To Dismiss, pp. 10, 11. The relevant exhibits — the rule violation report attached as Exhibit A to the Kim Declaration and the inmate appeal attached as Exhibit 1 to the Childress Declaration-contain no statements by defendants that they squeezed plaintiffs mouth, let alone that they did so to look for weapons. It may be that a weapons search was the reason for the squeezing of Rivera's mouth, but defendants would need to present that evidence in a declaration and in a summary judgment motion, rather than by an unsupported assertion in a Rule 12(b)(6) motion.
CONCLUSION
Defendants' motion to dismiss is GRANTED for failure to exhaust administrative remedies as to all claims against all defendants before filing this action. (Docket #12.) This action is dismissed without prejudice to plaintiff filing a new action after he exhausts his administrative remedies as to all claims against all defendants. The clerk shall close the file.
IT IS SO ORDERED.