1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 DONALD E. JACKSON, ) 4 ) Plaintiff, ) Case No.: 2:21-cv-01788-GMN-NJK 5 vs. ) ) ORDER 6 WILLIAM HUTCHINGS, et al., ) 7 ) Defendants. ) 8 ) 9 Pending before the Court is the Motion to Dismiss, (ECF No. 16), filed by Defendants 10 Monique Hubbard-Pickett, William Hutchings, and James Scally (collectively, “Defendants”). 11 Plaintiff Donald E. Jackson (“Plaintiff”) filed a Response, (ECF No. 21), to which Defendants 12 filed a Reply, (ECF No. 22). 13 Also pending before the Court is Plaintiff’s Motion to Reconsider, (ECF No. 25). 14 Defendant filed a Response, (ECF No. 26), to which Plaintiff filed a Reply, (ECF No. 27). 15 For the reasons discussed below, Defendant’s Motion to Dismiss is DENIED and 16 Plaintiff’s Motion to Reconsider is STRICKEN.1 17 I. BACKGROUND 18 This action arises from Defendants’ alleged violations of the Eighth Amendment’s 19 prohibition against cruel and unusual punishment. (Compl. at 17, ECF No. 5). Specifically, 20 Plaintiff alleges that Defendants have failed to take appropriate measures to address the spread 21 of COVID-19 at Southern Desert Correctional Center. (See generally id.); (Screening Order 22 3:20–26, ECF No. 4). 23

24 1 Plaintiff acknowledges that he “misunderstood the procedure and process” when he filed a motion to reconsider 25 of a non-existent order. (Reply to Mot. Recon. at 1:21–22). Accordingly, Plaintiff requests that the Court disregard Plaintiff’s Motion to Reconsider. (Id. at 1:25–27). For good cause appearing, the Court STRIKES Plaintiff’s Motion to Reconsider, (ECF No. 25). 1 II. LEGAL STANDARD 2 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 3 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly,

, 4 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 5 which it rests, and although a court must take all factual allegations as true, legal conclusions 6 couched as factual allegations are insufficient. Twombly,

. Accordingly, Rule 7 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 8 of a cause of action will not do.”

“To survive a motion to dismiss, a complaint must contain 9 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). “A 11 claim has facial plausibility when the plaintiff pleads factual content that allows the court to 12 draw the reasonable inference that the defendant is liable for the misconduct alleged.”

This 13 standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”

14 “Generally, a district court may not consider any material beyond the pleadings in ruling 15 on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co.,

, 16 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the 17 complaint may be considered.”

Similarly, “documents whose contents are alleged in a

18 complaint and whose authenticity no party questions, but which are not physically attached to 19 the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. 20 Tunnell,

(9th Cir. 1994) (overruled on other grounds by Galbraith v. Cty. of 21 Santa Clara,

(9th Cir. 2002)). On a motion to dismiss, a court may also take 22 judicial notice of “matters of public record.” Mack v. S. Bay Beer Distribs.,

, 23 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the 24 motion to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d). 25 /// 1 III. DISCUSSION 2 Defendants present one argument in their Motion to Dismiss: Plaintiff’s claims are 3 barred by the Prison Litigation Reform Act (“PLRA”) because Plaintiff failed to properly 4 exhaust all administrative remedies. (Mot. Dismiss 6:3–8, ECF No. 16). The PLRA provides 5 that “[n]o action shall be brought with respect to prison conditions under [

], or 6 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility 7 until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 8 “Proper exhaustion” of administrative remedies in prisoner cases is mandatory. Woodford v. 9 Ngo,

(2006). Proper exhaustion “means that a grievant must use all steps 10 the prison holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557

(9th Cir. 2009). “Applicable procedural rules [for proper exhaustion] are 12 defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock,

(2007). 14 Generally, failure to exhaust administrative remedies in PLRA cases is an issue decided 15 on summary judgment, with the aid of the NDOC Administrative Regulation (“AR”) 740 16 attached as an exhibit. See, e.g., Bazaldua v. Williams, No. 2:19-cv-00475-GMN-DJA, 2022

, at *3 (D. Nev. Mar. 10, 2022) (citing AR 740, attached as an exhibit to

18 defendants’ motion for summary judgment, to detail the grievance process); Welch v. Minev, 19 No. 2:19-cv-01064-GMN-BNW,

, at *4 (D. Nev. Oct. 7, 2022) (same). 20 Here, Defendants have filed a Motion to Dismiss, and no party has attached any exhibits. 21 Plaintiff did, however, attach documentation of his grievances to his Complaint. (Compl. 22 at 54–67, ECF No. 5).2 Additionally, Plaintiff’s Complaint alleges that he filed an Informal, 23 First Level, and Second Level Grievance. (Id. at 27). According to the Complaint, Plaintiff 24 25 2 The Second Level Grievance provided in the exhibits to the Complaint is not dated or signed by Plaintiff and does not contain a response from a prison official. (Id. 65–67). Defendants do not argue that Plaintiff failed to submit a Second Level Grievance, and the Court will not extrapolate from what could be a filing error. 1 filed Grievance No. 2006-31-19614 on March 16, 2021. (Compl. at 27, ECF No. 5). Plaintiff’s 2 Informal Grievance and First Level Grievance were denied, and his Second Level Grievance 3 was “pending response” when he filed the Complaint. (Id.). 4 The Court finds that dismissal for failure to exhaust administrative remedies is improper 5 at this stage. Although it is unclear whether Plaintiff exhausted his administrative remedies as 6 a matter of law,3 Plaintiff alleges that he filed grievances at each level. This is sufficient to 7 survive a motion to dismiss. Accordingly, the Court DENIES Defendants’ Motion. 8 V. CONCLUSION 9 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (ECF No. 16), is 10 DENIED. 11 IT IS FURTHER ORDERED that Plaintiff’s Motion to Reconsider, (ECF No. 25), is 12 STRICKEN. 13 DATED this _2_3___ day of May, 2023. 14 15 ___________________________________ Gloria M. Navarro, District Judge 16 UNITED STATES DISTRICT COURT 17 18 19 20 21 22 23 24 25 3 To determine whether Plaintiff exhausted his administrative remedies as a matter of law, the Court would need to consider AR 740. Neither party has asked the Court to do so. Additionally, on a motion for summary judgment, the Court would need the parties to refer to exhibits demonstrating the steps taken by Plaintiff to exhaust his administrative remedies.