Opinion
CV 01-10903 FMC (AJWx)
February 21, 2003
ORDER GRANTING IN PART AND DENYING IN PART MOVING DEFENDANT'S MOTION TO DISMISS
This matter is before the Court on the Motion to Dismiss filed by Defendant LeRoy Baca ("Moving Defendant") (docket #21). The Court deems this matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing date set for February 24, 2003, is removed from the Court's calendar. For the reasons and in the manner set forth below, the Court hereby grants in part and denies in part Moving Defendant's Motion.
I. Introduction
On February 3, 2003, Defendant Le Roy Baca moved to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(c) and "unenumerated Rule 12(b)." Moving Defendant moves to dismiss Plaintiff's federal claims because Plaintiff has allegedly failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). Moving Defendant also moves to dismiss Plaintiff's state law claims pursuant to Rule 12(c) for failure to allege compliance with the procedural requirements of the California Tort Claims Act, and on the basis of state law immunity. Plaintiff opposes Moving Defendant's motion as to the federal claims, but does not oppose the motion as to the state law claims. (Pl.'s Opp. at 8:10-12.)
II. Timeliness of Moving Defendant's Motion to Dismiss
Moving Defendant brings the instant motion under Federal Rule of Civil Procedure 12(c) and "unenumerated Rule 12(b)." Plaintiff argues that Moving Defendant's motion to dismiss pursuant to Rule 12(b) is untimely.
Unenumerated Rule 12(b) Motion
Moving Defendant moves to dismiss the federal claims as an "unenumerated Rule 12(b)" motion on the grounds that Plaintiff has failed to exhaust his administrative remedies as required by the PLRA. Plaintiff argues that an "unenumerated Rule 12(b)" motion must be filed before the answer, and within twenty days of the date of service of the complaint. Moving Defendant argues that an "unenumerated Rule 12(b)" motion is not subject to the time restrictions of "enumerated" Rule 12(b) motions. Moving Defendant, however, cites no authority in support of this proposition other than the text of Rule 12(b), which specifically refers to motions filed under the following bases: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. See Fed. Rule Civ. Proc. 12(b).
Moving Defendant also argues that the Ninth Circuit only recently stated in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), that an "unenumerated Rule 12(b)" motion (which looks beyond the pleadings and considers the factual record) rather than a motion for summary judgment, is the proper motion to challenge a plaintiff's failure to his exhaust administrative remedies under the PLRA. Moving Defendant argues that Wyatt was decided after he filed an Answer, and that he would never be able to raise the issue of exhaustion of administrative remedies if the Court were to find the instant "unenumerated Rule 12(b)" motion untimely, because "[p]reviously, the issue was to be raised by summary judgment motion." (Def.'s Reply at 5:1-8.)
Moving Defendant cites no case law which indicates that the issue of exhaustion of administrative remedies may only be raised through a motion for summary judgment. On the contrary, the Ninth Circuit has repeatedly found that "failure to exhaust non judicial remedies is a matter in abatement, not going to the merits of the claim, and as such is not properly raised in a motion for summary judgment." Ritza v. International Longshoremen's And Warehousemen's Union, et al., 837 F.2d 365, 368 (9th Cir. 1988) (citation omitted); Inlandboatmens Union of the Pacific v. Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002) ("We have held that a failure to exhaust non-judicial remedies must be raised in a motion to dismiss, and should be treated as such even if raised as part of a motion for summary judgment.")
Under previously existing Ninth Circuit case law, Moving Defendant should have brought his challenge to Plaintiff's claims based on failure to exhaust administrative remedies through a timely motion to dismiss rather than a motion for summary judgment.
The Ninth Circuit allows a Rule 12(b) motion any time before the responsive pleading is filed. See Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 P.2d 1470, 1474 (9th Cir. 1988) (citing Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1340-41 (9th Cir. 1976) (In Bechtel, the Ninth Circuit noted that "while some courts hold that Rule 12(b) motions must be made within 20 days of service of the complaint, the rule itself only requires that such motions `be made before pleading if a further pleading is permitted.'")
Plaintiff filed the Complaint on December 18, 2001. Moving Defendant filed an Answer on April 1, 2002. The instant motion was filed on February 3, 2003. Because Moving Defendant has not filed a timely Rule 12(b) motion, the Court hereby denies the Motion to Dismiss as to the federal claims. Rule 12(c) Motion
Because the Court denies Moving Defendant's motion as to the federal claims, the Court declines to rule on the Parties' objections to evidence and Plaintiff's request for judicial notice, which concern Plaintiff's exhaustion of administrative remedies,
Moving Defendant moves to dismiss the state law claims pursuant to Rule 12(c). Plaintiff does not argue that the Rule 12(c) motion is untimely, and does not oppose Moving Defendant's motion as to the state law claims. Thus, the Court hereby grants the Motion to Dismiss with prejudice as to the state law claims.
III. Conclusion
Moving Defendant's Motion to Dismiss is hereby granted in part and denied in part. Plaintiff's state law claims are hereby dismissed with prejudice.