United States District Court, D. Arizona
Anthony L. Rodrigues, Plaintiff,
Charles L. Ryan, et al., Defendants.
G. Campbell United States District Judge
Anthony L. Rodrigues, who is currently confined in the Red
Rock Correctional Center in Eloy, Arizona, brought this case
pursuant to 42 U.S.C. § 1983 and Arizona state law.
Defendants Ryan, Diaz, Rider, Winkler, and Santiago have
filed a Motion to Dismiss for failure to state a claim and
for failure to exhaust administrative remedies, and Plaintiff
opposes the Motion. (Docs. 24, 39.) Defendants Washington and
Management & Training Corporation (MTC) join in the
Motion to Dismiss. (Doc. 53.) For the following reasons,
Defendants' Motion to Dismiss is granted in part and
denied in part.
First Amended Complaint (FAC), Plaintiff alleged that in July
2015, Defendants allowed the Arizona State Prison
(ASP)-Kingman, where he was housed, to devolve to the point
where a riot broke out. Plaintiff was injured in the riot
even though he did not participate in it. (Doc. 20 at
8-15.) Shortly after the riot, Plaintiff was transferred to
the Red Rock Correctional Center. (Id. at 17.)
Plaintiff seeks “declaratory/injunctive relief, ”
damages, attorney's fees, and costs. (Id. at
May 16, 2017 Report and Recommendation (R&R), Magistrate
Judge Willett screened Plaintiff's FAC and recommended
that the Court dismiss Counts One, Four, Five and Six, that
Defendants Ryan, Rider, Santiago, Diaz, Winkler, and
Frederick be required to answer the Eighth Amendment
threat-to-safety claim in Count Two, that Defendants MTC,
Washington, Rider, Santiago, Diaz, Winkler, and Frederick be
required to answer the negligence claim in Count Three, and
that Defendant MTC be required to answer the negligent
training claim in Count Three. (Doc. 22 at 11.) In a June 9,
2017 Order, the Court accepted the R&R and required the
Defendants to answer the claims against them as set forth in
the R&R. (Doc. 27.)
the Court adopted the R&R, Defendants filed the pending
Motion to Dismiss. (Docs. 24, 53.) Although Defendants'
Motion to Dismiss was premature, the Motion is now fully
briefed and Plaintiff was additionally permitted to file a
sur-reply. Therefore, the Court will consider the merits of
Federal Rule of Civil Procedure 12(b)(6)
12(b)(6) motion “tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the
court takes all allegations of material fact as true and
construes them in the light most favorable to the nonmoving
party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th
Cir. 2009). The court will “‘presume that general
allegations embrace those specific facts that are necessary
to support the claim.'” Nat'l Org. for
Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994)
(quotation omitted). Where the plaintiff is a pro se
prisoner, the court must “construe the pleadings
liberally and  afford the petitioner the benefit of any
doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010).
general rule, when deciding a Rule 12(b)(6) motion, the court
looks only to the face of the complaint and documents
attached thereto. Van Buskirk v. Cable News Network,
Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach
Studios, Inc. v. Richard Feiner & Co., Inc., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers
evidence outside the pleading, it must convert the Rule
12(b)(6) motion into a Rule 56 motion for summary judgment.
United States v. Ritchie, 342 F.3d 903, 907-08 (9th
Cir. 2003). A court may, however, consider documents
incorporated by reference in the complaint or matters of
judicial notice without converting the motion to dismiss into
a motion for summary judgment. Id.
argue first that Plaintiff cannot recover for his alleged
personal injuries because he did not exhaust his
administrative remedies. (Doc. 24 at 3.) Under the PLRA, a
prisoner must exhaust “available” administrative
remedies before filing an action in federal court.
See 42 U.S.C. § 1997e(a); Vaden v.
Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006);
Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir.
2005). The prisoner must complete the administrative review
process in accordance with applicable rules. See Woodford
v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required
for all suits about prison life, Porter v. Nussle,
534 U.S. 516, 523 (2002), regardless of the type of relief
offered through the administrative process, Booth v.
Churner, 532 U.S. 731, 741 (2001).
limited number of cases, the failure to exhaust may be clear
from the face of the complaint, but “such cases will be
rare because a plaintiff is not required to say anything
about exhaustion in his complaint.” Albino v.
Baca, 747 F.3d 1162, 1169 (9th Cir. 2014); see Jones
v. Bock, 549 U.S. 199, 216 (2007) (failure to exhaust is
an affirmative defense and a prisoner is not required to
plead or demonstrate exhaustion in the complaint). In the
rare case where failure to exhaust is clear from the face of
the complaint, the defendant may move to dismiss under Rule
12(b)(6). Albino, 747 F.3d at 1169. To properly be
considered on a Rule 12(b)(6) motion, the nonexhaustion
defense must raise no disputed issues of fact. See Scott
v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984)
(affirmative defense may be raised by motion to dismiss only
if “the defense raises no disputed issues of
fact”). Typically, to show that a prisoner has failed
to exhaust remedies, a defendant will have to present
probative evidence on a motion for summary judgment under
Rule 56. Albino, 747 F.3d at 1169.
the Court cannot conclude from the face of the FAC that
administrative remedies were made available to Plaintiff and
that he failed to exhaust them. Plaintiff merely checked the
boxes on the complaint form indicating that he had appealed
his allegations in Counts Two and Three to the highest level.
(See Doc. 20 at 19, 25.) In support of their Motion,
Defendants have included grievance documents which they argue
show that Plaintiff did not fully exhaust his claims. (Doc.
24 at 4; 24-1 at 2-7 (Defs.' Ex. 1).) But the Court
cannot consider these documents without going beyond the face
of the FAC. This is not permitted on a Rule 12(b)(6) motion