United States District Court, D. Oregon
BRIAN KEITH SEWARD, Soldotna, AK, Plaintiff, Pro Se.
ELLEN ROSENBLUM, Attorney General SHANNON M. VINCENT, Assistant Attorney General, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Unenumerated Rule 12(b) Motion (#52-1) to Dismiss for Failure to Exhaust and Rule 12(b) Motion (#52-2) to Dismiss for Failure to State a Claim. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss for Failure to Exhaust and DENIES as moot Defendants' Motion to Dismiss for Failure to State a Claim.
On June 12, 2012, Plaintiff Brian Keith Seward filed a pro se Complaint in this Court pursuant to 42 U.S.C. § 1983 in which he alleges Defendants violated his right under the First and Fourteenth Amendments to the United States Constitution when Defendant E. Solice "touched Plaintiff's] penis though [his] clothing intentionally on several occasions while doing patdowns or frisks [when Plaintiff was] leaving [his] work assignment." Compl. at 4. When Plaintiff filed this action he was incarcerated at Oregon State Correctional Institution (OSCI). At some point after this action was filed, Plaintiff was released from custody.
On August 27, 2013, Defendants filed a Motion to Dismiss on the grounds that Plaintiff failed to exhaust his administrative remedies, or in the alternative, that Plaintiff failed to state a claim. The Court took the Motion under advisement on December 9, 2014.
I. Dismissal for failure to exhaust administrative remedies
In the Ninth Circuit failure to exhaust administrative remedies "should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). To decide a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.
Unlike summary judgment, dismissal for failure to exhaust administrative remedies is not a decision on the merits. Id. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120.
II. Dismissal for failure to state a claim
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [ Bell Atlantic v. Twombly, 550 U.S. 554, ] 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556.... The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 557, 127 S.Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. ...