United States District Court, W.D. Washington, Tacoma
ORDER CONVERTING MOTION TO DISMISS TO MOTION FOR
Richard Creatura United States Magistrate Judge
U.S.C. § 1983 civil rights matter has been referred to
Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C.
§§ 636 (b)(1)(A) and (B) and Local Magistrate Judge
Rules MJR 1, MJR 3, and MJR 4. Defendants have filed a motion
to dismiss, alleging both that plaintiff has failed to
exhaust his administrative remedies as to all defendants
except defendant Balderama, and addressing plaintiff's
claims on their merits. Dkt. 14.
challenge plaintiff's failure to exhaust under Federal
Rule of Civil Procedure 12(b)(1). They cite to multiple
cases, both within and without the Ninth Circuit, arguing
that failure to exhaust is properly raised through Rule
12(b)(1) and that, unlike more common motions to dismiss
where the Court may only examine the complaint, the Court may
properly examine affidavits and other evidence outside the
complaint to make its determination here. Dkt. 14 at 4-5.
Ninth Circuit has held that “[i]n the rare event that a
failure to exhaust is clear on the face of the complaint, a
defendant may move for dismissal under Rule 12(b)(6).”
Albino, 747 F.3d at 1166. That court noted that, if
the face of the complaint does not establish a failure to
exhaust, “defendants must produce evidence proving
failure to exhaust in order to carry their burden. If
undisputed evidence viewed in the light most favorable to the
prisoner shows a failure to exhaust, a defendant is entitled
to summary judgment under Rule 56.” Id.
Indeed, the Ninth Circuit, in interpreting this case, stated
that “the proper procedural device for determining
whether administrative remedies have been exhausted is a
summary judgment motion.” Williams v. Paramo,
775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino,
747 F.3d at 1168).
the Ninth Circuit has not explicitly forbidden a Rule
12(b)(1) motion to dismiss for failure to exhaust
administrative remedies, the Court determines that, based on
current Ninth Circuit law, the only proper avenues to
challenge exhaustion are a Rule 12(b)(6) motion to dismiss if
it is clear on the face of the complaint that plaintiff has
failed to exhaust administrative remedies and the Court can
make a determination based on the complaint itself, or a Rule
56 motion for summary judgment if the Court must examine
plaintiff has indicated in his complaint that there is a
prisoner grievance procedure in place, that he has filed
grievances related to his complaint, and that the grievance
process is complete. Dkt. 6 at 2. Thus, it is not clear from
the face of the complaint that plaintiff has failed to
exhaust his administrative remedies. Therefore, the Court
must examine additional evidence to determine if plaintiff
has properly exhausted those remedies and so a motion for
summary judgment is the proper procedural device.
as defendants challenge plaintiff's exhaustion of
administrative remedies under Rule 12(b)(1), the motion to
dismiss is converted to a motion for summary judgment under
Rule 56. In other words, the Court will examine more than
just the complaint when determining whether plaintiff has
exhausted his administrative remedies. To that end, plaintiff
may submit evidence that he has, in fact, exhausted his
remedies when he submits his response to defendants'
motion. Defendants may also submit additional evidence along
with their reply.
the Court will only examine evidence outside the complaint
when it determines whether plaintiff has exhausted his
administrative remedies. The Court will make a determination
on the rest of defendants' motion to dismiss, addressing
the merits of plaintiff's claims, based only on the
complaint itself. In other words, the Court will examine the
plaintiff's complaint on its face to determine if, with
all allegations in the complaint presumed to be true,
plaintiff has stated a claim on which relief can be granted.
the Court will not examine additional evidence outside the
complaint as to the merits of plaintiff's claims at this
time, defendants may still file a motion for summary judgment
as to those claims, including evidence outside the complaint,
if, after the Court has entered its report and
recommendation, the District Court determines not to dismiss
the action based on the current motion.
Clerk is directed to convert defendants' motion to
dismiss (Dkt. 14) to a motion for summary judgment. The
document should be retitled “motion for summary
judgment as to exhaustion and motion to dismiss.”
Clerk is also directed to renote the motion for summary
judgment/motion to dismiss (Dkt. 14) to June 8, 2018.
 Though defendants properly note that
the District of Nevada granted a 12(b)(1) motion for failure
to exhaust administrative remedies in Antonetti v.
Skolnik, 2015 WL 1119975 at *1 (D. Nev. 2015), that
court did not address Albino or its implications.
The Court does not find that case or ...