1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

COREY ANTIONNE TOLES,

7 Case No. 22-cv-01073-YGR (PR) Plaintiff, 8 ORDER DENYING DEFENDANTS’ v. MOTION TO DISMISS; AND 9 DIRECTING DEFENDANTS TO FILE TAMMY FOSS, et al., A MOTION FOR SUMMARY 10 JUDGMENT Defendants. 11

12 I. INTRODUCTION 13 Plaintiff, who has since been paroled, filed a pro se civil rights action pursuant to 42 14 U.S.C. § 1983 alleging a claim of a violation of his Eighth Amendment rights between November 15 2018 through April 2019, while he had been previously incarcerated at Salina Valley State Prison 16 (“SVSP”). Dkt. 1. 17 In an Order dated October 5, 2022, the Court determined that plaintiff stated a cognizable 18 Eighth Amendment claim, relating to the failure to repair the roof of his housing unit, against the 19 following defendants from SVSP: Warden Tammy Foss; Associate Warden M. Atchley; 20 Correctional Officer P. Rakitin, Carpenter/Operations Maintenance T. Vaughn; and “Does: 1-10.”. 21 Dkt. 5. The Court has since dismissed all claims against “Does: 1-10.” Dkt. 12. 22 Before the Court is a motion to dismiss plaintiff’s complaint filed by the remaining named 23 defendants (hereinafter “defendants”) on the grounds that: (1) plaintiff failed to exhaust his 24 administrative remedies before filing suit, (2) his complaint fails to allege sufficient facts to state a 25 claim for relief against defendants Foss and Atchley, and (3) defendant Rakitin is entitled to 26 qualified immunity. Dkt. 10. 27 For the reasons outlined below, the Court DENIES defendants’ motion to dismiss. Dkt.

II. DEFENDANTS’ MOTION TO DISMISS

1 A. Failure to Exhaust Administrative Remedies 2 Defendants argue that plaintiff failed to exhaust available administrative remedies for his 3 Eighth Amendment claim. Dkt. 10 at 10-12.1 4 Under Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), in the rare event that a 5 failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under 6 Rule 12(b)(6). Id. at 1169. Otherwise, a defendant must produce evidence proving failure to 7 exhaust in a motion for summary judgment under Rule 56. Id. A defendant must present 8 probative evidence that there was an available administrative remedy and that the prisoner did not 9 exhaust that available administrative remedy. Id. 10 Here, plaintiff claims that he exhausted available administrative remedies as to his Eighth 11 Amendment claim against defendants. Dkt. 1 at 8. Out of an abundance of caution, as a matter of 12 clarity, and to ensure that plaintiff understands the difference between a Rule 12(b) motion and a 13 motion for summary judgment, defendants’ motion to dismiss plaintiff’s complaint under the 14 unenumerated portion of Rule 12(b) for failure to exhaust available administrative remedies is 15 DENIED. The denial is without prejudice to defendants renewing the failure to exhaust defense in 16 a motion for summary judgment, if appropriate. 17 B. Failure to State a Claim for Relief 18 The Court shall now consider defendants’ alternative argument that plaintiff fails to state a 19 claim for relief against defendants Foss and Atchley. Dkt. 10 at 12. 20 Dismissal for failure to state a claim is a ruling on a question of law. See Parks School of 21 Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). “The issue is not whether the 22 plaintiff ultimately will prevail, but whether he is entitled to offer evidence to support his claim.” 23 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 24 In this respect, the motion seeks to have the Court revisit a decision already made, as this 25 Court has decided that the complaint did state a claim upon which relief may be granted as to 26 27 1 defendants Foss and Atchley. See Dkt. 7 at 2-3. As mentioned above, on October 5, 2022, the 2 Court did an initial screening of the complaint under 28 U.S.C. § 1915A, which requires the Court 3 to dismiss, among other things, any claims that “fail to state a claim upon which relief may be 4 granted.” See id. at 1-2. The Court noted that plaintiff had alleged that defendants Foss, Atchley, 5 Rakitin, and Vaughn were aware “that SVSP Facility B, Building 1 is a dilapidated, crumbling, 6 defective, unfit and unsafe housing unit, but armed with this safety hazard foreknowledge took no 7 action to correct the unsafe[,] hazardous living conditions, nor to provide the inmates housing in 8 this defective unit with any means of protection from the known foreseeable serious injuries and 9 health risk posed by the unsafe dangerous living conditions.” Id. at 3 (quoting Dkt. 1 at 17). The 10 Court determined that plaintiff’s allegations against defendants (including defendants Foss and 11 Atchley) in his complaint, when liberally construed, appeared to state a claim for relief 12 (specifically, an Eighth Amendment claim). Id. at 2-3. 13 To seek reconsideration of an interlocutory order, such as the decision in the October 5, 14 2022 Order with regard to whether the complaint stated a claim upon which relief may be granted, 15 defendants had to comply with Local Rule 7-9(a). Here, defendants did not do so. Defendants did 16 not obtain leave of court to file a motion for reconsideration, and made no argument in the 17 attached brief that would suggest that defendants could pass the test for such permission. That is, 18 defendants did not show: (1) that at the time of the motion for leave, a material difference in fact 19 or law exists from that which was presented to the court before entry of the interlocutory order for 20 which the reconsideration is sought, and that in the exercise of reasonable diligence the party 21 applying for reconsideration did not know such fact or law at the time of the interlocutory order; 22 or (2) the emergence of new material facts or a change of law occurring after the time of such 23 order; or (3) a manifest failure by the court to consider material facts which were presented to the 24 court before such interlocutory order. See N. D. Cal. Civil L.R. 7-9(b). Even without the special 25 requirements for motions to reconsider, defendants would have the problem that a pleading 26 challenge following a section 1915A screening of a prisoner complaint rarely will be successful, 27 especially in light of the requirement that pro se complaints be liberally construed. See Bell 1 F.3d 1060, 1061-62 (9th Cir. 2008) (“‘Pro se complaints are to be construed liberally and may be 2 dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can 3 prove no set of facts in support of his claim which would entitle him to relief.’”) 4 Accordingly, defendants’ motion to dismiss on the alternative ground of failure to state a 5 claim is also DENIED as to the Eighth Amendment claim against defendants Foss and Atchley. 6 Thus, defendants’ aforementioned ground for dismissal is more properly raised in a motion for 7 summary judgment. 8 C. Qualified Immunity 9 Finally, defendants assert that defendant Rakitin is entitled to the defense of qualified 10 immunity. Dkt. 10 at 13-14. Because defendant Rakitin is the only defendant who raises this 11 argument, the Court considers only his motion for qualified immunity. Id. 12 Qualified immunity protects “government officials . . . from liability for civil damages 13 insofar as their conduct does not violate clearly established statutory or constitutional rights of 14 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 15 The rule of qualified immunity protects “all but the plainly incompetent or those who knowingly 16 violate the law;” defendants can have a reasonable, but mistaken, belief about the facts or about 17 what the law requires in any given situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (internal 18 quotation and citation omitted) overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 19 236 (2009). “Therefore, regardless of whether the constitutional violation occurred, the [official] 20 should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the [official] 21 could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 22 931 F.2d 624, 627 (9th Cir. 1991). A court considering a claim of qualified immunity must 23 determine whether the plaintiff has alleged the deprivation of an actual constitutional right and 24 whether such right was clearly established such that it would be clear to a reasonable officer that 25 his conduct was unlawful in the situation he confronted. See Pearson, 555 U.S. at 236 26 (overruling the sequence of the two-part test that required determination of a deprivation first and 27 then whether such right was clearly established, as required by Saucier and holding that court may 1 circumstances of each case). Qualified immunity is particularly amenable to summary judgment 2 adjudication. Martin v. City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004). 3 Here, defendant Rakitin brings this motion for qualified immunity as a motion to dismiss, 4 pursuant to Rule 12(b)(6). In support of this motion, defendant Rakitin relies solely on plaintiff’s 5 complaint. Defendant Rakitin has submitted no other declarations or evidence outside the 6 pleadings relevant to a qualified immunity determination. Meanwhile, as explained above, 7 plaintiff has adequately alleged an Eighth Amendment claim against defendants. Specifically, 8 plaintiff has alleged that defendant Rakitin along with the other named defendants

9 failed jointly and severally to repair the defective and known reoccurring injury causing hazardous prison cell faulty roofing that 10 began to leak on November 26, 2018 . . . and consistently flooded and leaked daily with cold contaminated water containing feces requiring 11 [plaintiff] to mop and push water out of the cell 3 to 4 times a day. 12 Id. at 4-5. During the time period of the alleged acts, the law was clearly established that the 13 failure of prison officials to provide prisoners with adequate sanitation violates the Eighth 14 Amendment. However, the question—of whether defendant Rakitin could reasonably have 15 believed that his conduct was lawful—is more properly resolved on a motion for summary 16 judgment, when defendant Rakitin is entitled to present evidence on his behalf and the Court may 17 properly consider such evidence. See, e.g., Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999) 18 (affirming the district court’s denial of a dismissal motion on grounds of qualified immunity 19 because the court’s review is confined only to the contents of the complaint). Thus, for the 20 purposes of the instant motion, the Court cannot resolve the issue of whether defendant Rakitin is 21 entitled to qualified immunity. Therefore, the Court DENIES defendant Rakitin’s alternative 22 argument that he is entitled to qualified immunity as to plaintiff’s Eighth Amendment claim 23 against him. Again, the denial is without prejudice to defendants renewing the qualified immunity 24 defense in a motion for summary judgment, if appropriate. 25 Accordingly, the parties shall abide by the following briefing schedule outlined below. 26 III. CONCLUSION 27 For the reasons outlined above, the Court orders as follows: 1 Amendment claim against them based on all grounds (failure to exhaust, failure to state a claim, 2 and qualified immunity). Dkt. 10. The denial is without prejudice to defendants raising the 3 aforementioned grounds for dismissal in a motion for summary judgment. 4 2. The parties shall abide by the following briefing schedule: 5 a. Defendants shall file a motion for summary judgment within sixty (60) 6 days from the date this Order is filed. The motion must be supported by adequate factual 7 documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must 8 include as exhibits all records and incident reports stemming from the events at issue. 9 Defendants are reminded that a motion for summary judgment also must be accompanied 10 by a Rand2 notice so that plaintiff will have fair, timely and adequate notice of what is required of 11 him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 12 requirement set out in Rand must be served concurrently with motion for summary judgment). If 13 defendants are of the opinion that this case cannot be resolved by summary judgment, defendants 14 shall so inform the Court prior to the date the summary judgment motion is due. All papers filed 15 with the Court shall be promptly served on plaintiff. 16 b. Plaintiff’s opposition to the motion for summary judgment shall be filed 17 with the Court and served on defendants no later than twenty-eight (28) days after the date on 18 which defendants’ motion is filed. 19 Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal 20 Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in 21 order to oppose a motion for summary judgment. Generally, summary judgment must be granted 22 when there is no genuine issue of material fact—that is, if there is no real dispute about any fact 23 that would affect the result of your case, the party who asked for summary judgment is entitled to 24 judgment as a matter of law, which will end your case. When a party you are suing makes a 25 motion for summary judgment that is properly supported by declarations (or other sworn 26 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 27 1 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 2 as provided in Rule 56(e), that contradicts the facts shown in defendants’ declarations and 3 || documents and show that there is a genuine issue of material fact for trial. If you do not submit 4 || your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 5 || If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 6 || F.3d at 962-63. 7 (The Rand notice above does not excuse defendants’ obligation to serve said notices again 8 concurrently with any motions for summary judgment. Woods, 684 F.3d at 935.) 9 C. Defendants shall file a reply brief no later than fourteen (14) days after the 10 || date plaintiff's opposition is filed. 11 d. The motion shall be deemed submitted as of the date the reply brief is due. 12 || No hearing will be held on the motion unless the Court so orders at a later date. 13 3. This Order terminates Docket No. 10.

IT IS SO ORDERED.

15 || Dated: September 5, 2023 A 16 Ide pthbbles

TYSAE YVONNE GONZALEZ ROGERS

Unfted States District Judge 18 19 20 21 22 23 24 25 26 27 28