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Vela v. Cox

United States District Court, D. Nevada

June 4, 2014

RAMIRO VELA, Plaintiff,
JAMES G. COX, et al., Defendants.


VALERIE P. COOKE, Magistrate Judge.

This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is defendants' Rule 12(b) motion to dismiss (#17).[1] Plaintiff opposed (#21), and defendants replied (#22). The court has thoroughly reviewed the record and recommends that defendants' motion to dismiss (#17) be denied.


Plaintiff Ramiro Vela ("plaintiff"), a pro se litigant, is incarcerated at Northern Nevada Correctional Center ("NNCC") in the custody of the Nevada Department of Corrections ("NDOC") (#6). On August 27, 2013, plaintiff filed his first amended civil rights complaint, pursuant to 42 U.S.C. § 1983, alleging violations of his First, Eighth and Fourteenth Amendment rights. Id. The court screened the complaint, pursuant to 28 U.S.C. § 1915A, and permitted only plaintiff's Eighth Amendment medical claim against defendants Bannister, M. Johns and Walsh to proceed (#7, p. 4).

Plaintiff alleges that defendants Bannister and Johns denied him proper medical care for his degenerative hip and back conditions by prescribing "placebo" medications for his hypertension to punish and incapacitate plaintiff (#6, pp. 4-5). Plaintiff alleges that he was prescribed Losartan Potassium in place of Micardis due to the cost of Micardis and, when Dr. Gedney overruled the prescription change, defendants Bannister and Walsh delayed approval of the needed medication for over five months and denied plaintiff's grievances. Id.

Defendants ask the court to grant their unenumerated 12(b) motion to dismiss on the grounds that plaintiff failed to properly exhaust his administrative remedies (#17, p. 1). Defendants argue that plaintiff properly filed informal and first-level grievances, but then failed to properly file his second-level grievance, and therefore, his claim is unexhausted and must be dismissed. Id.


The court addresses two preliminary matters. First, the court notes that plaintiff is proceeding pro se. "In civil cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Second, defendants styled their motion as an unenumerated Rule 12(b) motion to dismiss, which was the accepted procedural device for pretrial determination of whether administrative remedies have been exhausted under the PLRA at that time. See 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). As defendants acknowledge in their reply brief, the Ninth Circuit has subsequently overruled Wyatt and held that, if the evidence of failure to exhaust administrative remedies permits, a defendant may move for summary judgment under Federal Rule of Civil Procedure 56. Albino v. Baca, 2014 WL 1317141 *14 (9th Cir., Apr. 3, 2014). The Court stated that the question of exhaustion, if feasible, should be decided before reaching the merits of an inmate's claims. Id. Accordingly, and as defendants request in their reply, the court shall construe defendants' motion as a motion for summary judgment.

A. Legal Standards

1. 42 U.S.C. § 1983

Title 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). Section 1983 does not offer any substantive rights, but provides procedural protections for federal rights granted elsewhere. Albright v. Oliver, 510 U.S. 266, 271 (1994). To prove liability under § 1983, a plaintiff must: (1) show that a person acting under color of state law engaged in some type of conduct, which (2) deprived the plaintiff of some right, privilege or immunity secured by the Constitution or federal statutory law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overturned on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

2. Summary Judgment

Summary judgment allows courts to avoid unnecessary trials where there are no factual disputes. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court will grant summary judgment if no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view all evidence and any inferences arising from the evidence in the light most ...

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