Wood v. United States of America

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MICHAEL A. WOOD, CASE NO. 2:22-CV-636-DGE-DWC 11 Plaintiff, ORDER CONVERTING INDIVIDUAL 12 v. BOP DEFENDANTS’ MOTION TO DISMISS TO MOTION FOR UNITED STATES OF AMERICA, et SUMMARY JUDGMENT AND al., GRANTING IN PART DEFENDANTS’ 14 MOTION FOR DISCOVERY STAY Defendants.

The District Court referred this action, filed pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), to United States Magistrate Judge David W. Christel. Currently pending before the Court is the motion to dismiss brought by Defendants Kevin Posalski, Dr. Dy, Scottie Bussell, James Corliss and Israel Jacquez (“Individual BOP Defendants”) (Dkt. 57) and the motion to stay discovery brought by the Individual BOP Defendants and Defendants John Westland and Matthew Lilje (“USMS Defendants”) (Dkt. 78).

24 ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO 1 The Individual BOP Defendants’ motion to dismiss (Dkt. 57) must be considered under the rules applicable to motions for summary judgment; the Court therefore converts the motion dismiss to a motion for summary judgment, re-notes the motion and establishes a schedule for optional additional briefing. The Court grants-in-part and denies-in-part Defendants’ motion to stay discovery (Dkt. 78).

6 A. Individual BOP Defendants’ Motion to Dismiss (Dkt. 57) 7 The Individual BOP Defendants have moved to dismiss Plaintiff’s claims against them on the ground that Plaintiff has failed to exhaust his administrative remedies as required by the Prisoner Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). See Dkt. 57.

10 Exhaustion in cases covered by § 1997e(a) is mandatory. Booth v. Churner, 532 U.S. 731, 739 (2001). All “available” remedies must be exhausted. Id. 12 However, “failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). Defendants bear the initial burden “to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 788 n.5 (9th Cir. 1996)). If the Defendants meet their burden to show an available administrative remedy, “the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. (citing Hilao, 103 F.3d at 788 n.5). The “ultimate burden of proof remains with the defendant.” Id. (citing Jones).

22 When alleging a plaintiff failed to exhaust administrative remedies, a defendant may move for dismissal under Federal Rule of Civil Procedure 12 only in the extremely rare event the ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO plaintiff’s failure to exhaust administrative remedies is clear on the face of the complaint. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “Otherwise, defendants must produce evidence proving failure to exhaust” in a summary judgment motion brought under Rule 56. Id. 4 Here, Defendants have submitted and rely upon evidence outside of the pleadings. See Dkt. 58. Therefore, their motion must be considered as one for summary judgment under Rule 56, not as a motion to dismiss under Rule 12. See Garaux v. Pulley, 739 F.2d 437, 438 (9th Cir. 1984). Thus, the Court converts Defendants’ motion under Rule 12 into a Rule 56 motion for summary judgment and provides the Parties with leave to file additional briefing and evidence.

9 Because Defendants’ original Notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 10 952 (9th Cir. 1998) presented the motion as one under Rule 12 and stated Plaintiff “must rely on what is stated in [his] Complaint,” (Dkt. 59 at 2), the Court provides the following warning to Plaintiff regarding his obligation to respond to a motion for summary judgment: 13 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for 15 summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact – that is, if there is 16 no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to 17 judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is 18 properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must 19 set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in 20 Rule 56(e), that contradict the facts shown in the defendant’s declarations and documents and show that there is a genuine 21 issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may 22 be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.

24 ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO Rand, 154 F.3d at 963 (9th Cir. 1998) (emphasis added).

2 B. Motion to Stay Discovery (Dkt. 78) 3 The Court has previously stayed discovery against the Bureau of Prisons (“BOP”) pending the consideration of its motion to dismiss. Dkt. 60. The Individual BOP Defendants and the USMS Defendants now also seek a stay of discovery pending the decision of their pending motions to dismiss. Dkt. 78. Plaintiff has filed a response. Dkt. 79. The moving parties have not replied.

8 A court may relieve a party of the burdens of discovery while a dispositive motion is pending. DiMartini v. Ferrin, 889 F.2d 922 (9th Cir. 1989), amended at 906 F.2d 465 (9th Cir. 1990); Rae v. Union Bank, 725 F.2d 478 (9th Cir. 1984); see also Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013) (permitting a stay of discovery where a pending dispositive motion is (1) “potentially dispositive of the entire case or at least dispositive of the issue on which discovery is sought” and (2) can be decided without additional discovery). Where discovery will not affect the 12(b) decision, staying discovery ensures the defendant’s motion is properly addressed and advances “the goals of efficiency for the court and litigants.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).

17 The moving defendants contend their pending motions to dismiss, if granted, would be dispositive of the entire case against them and the motions can be decided without further discovery. Dkt. 78. The Court is, simultaneously with this Order, issuing a Report and Recommendation that the claims against the USMS Defendants be dismissed. Accordingly, if adopted by the District Judge, all claims against the USMS Defendants would be dismissed and no further discovery against them would be appropriate. The Court therefore finds a stay of ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO discovery from the USMS Defendants pending the District Judge’s consideration of the Report and Recommendation is appropriate.

3 The Individual BOP Defendants have brought a motion to dismiss on the ground that Plaintiff failed to exhaust his administrative remedies, as required by the PLRA, Dkt. 57. As discussed above, the Court has concluded the Individual BOP Defendants’ motion must be considered as one for summary judgment pursuant to Fed. R. Civ. P. 56 instead of as a motion to dismiss pursuant to Fed. R. Civ. P. 12. Although the motion, if granted, could resolve all claims against the moving defendants, the parties may refer to matters outside the pleadings.

9 Accordingly, the Court declines to stay discovery related to Plaintiff’s exhaustion of his administrative remedies. However, a stay of any discovery beyond the issue of exhaustion of administrative remedies would advance the efficiency of the Court and is therefore appropriate.

12 Accordingly, the Court grants a stay of all discovery from the Individual BOP Defendants that is not directly related to the existence of available administrative remedies and Plaintiff’s exhaustion of (or failure to exhaust) such remedies.

15 C. Conclusion 16 The Court therefore ORDERS as follows: 17 1. The Individual BOP Defendants’ motion to dismiss (Dkt. 57) is converted to a 18 motion for summary judgment pursuant to Fed. R. Civ. P. 56. The parties are 19 provided an opportunity to file additional briefing. Defendants’ optional 20 supplemental brief will be due on or before August 11, 2023; Plaintiff’s optional 21 responsive briefing shall be due on or before September 8, 2023. The Clerk is 22 directed to rename the Individual BOP Defendants’ motion to dismiss (Dkt. 57) as 23 a motion for summary judgment and to re-note the motion for September 8, 2023.

24 ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO 1 2. The Defendants’ motion to stay discovery (Dkt. 78) is granted-in-part and denied- 2 in-part as follows: 3 a. All discovery is stayed as to the USMS Defendants; 4 b. Discovery related to Plaintiff’s exhaustion of administrative remedies may 5 continue as to the Individual BOP Defendants; 6 c. All discovery that is not relevant to Plaintiff’s exhaustion of administrative 7 remedies is stayed as to the Individual BOP Defendants.

8 Dated this 21st day of July, 2023.

A David W. Christel Chief United States Magistrate Judge ORDER CONVERTING INDIVIDUAL BOP DEFENDANTS’ MOTION TO DISMISS TO