United States District Court, D. Oregon
CHRIS SHABAZZ-WIMBERLY Deer Ridge Correctional Institution Madras, OR, Plaintiff, Pro Se.
ELLEN ROSENBLUM, Attorney General, MICHAEL R. WASHINGTON, Assistant Attorney General, Oregon Department of Justice Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Motion (#36) for Summary Judgment. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendants' Motion.
On December 15, 2014, Plaintiff, an inmate at Deer Ridge Correctional Institution,  filed pro se an Amended Complaint in this Court pursuant to 42 U.S.C. § 1983 alleging Defendants violated his rights to be free from deliberate indifference under the Eighth Amendment, to due process under the Fourteenth Amendment, and to free speech in violation of the First Amendment.
On January 6, 2015, Defendants filed a Motion for Summary Judgment in which they seek to dismiss Plaintiff's claims for failure to exhaust administrative remedies.
On January 7, 2015, the Court issued a Summary Judgment Advice Notice to Plaintiff advising him that if he did not submit admissible evidence in opposition to Defendants' Motion for Summary Judgment, summary judgment could be entered against him.
Plaintiff filed a Response to Defendants' Motion, and the Court took the matter under advisement on May 5, 2015.
In the Ninth Circuit the 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). See also Dixon v. Corr. Corp. of Am., 420 F.Appx. 766, 767 (9th Cir. 2011)("[T]he failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Federal Rule of Civil Procedure 12(b) motion rather that a motion for summary judgment."); Puente v. City of Los Angeles, 358 F.Appx. 909, 910-11 (9th Cir. 2011)("First, the district court did not abuse its discretion by declining to vacate its dismissal order based on Plaintiff's claim that Defendants' motion to dismiss was untimely. A motion to dismiss for failure to exhaust administrative remedies must be made as an unenumerated Fed.R.Civ.P. 12(b) motion, and need not be filed before a responsive pleading."). The Court, therefore, treats Defendants' Motion as an unenumerated Rule 12(b) Motion to Dismiss.
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.
I. Prison Litigation Reform Act (PLRA) ...