Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

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JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barry Northcross Patterson,
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Plaintiff,
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vs.
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Dora Schriro, et al.,
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Defendants.
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) ) ) ) ) ) ) ) ) ) )

No. CV 03-2178-PHX-PGR (MHB) ORDER

Plaintiff bought this civil rights action under 42 U.S.C. § 1983 against various
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officials from the Arizona Department of Corrections (ADC) (Doc. #15). The only
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remaining Defendant is Martinez, a member of the ADC Banking Staff (id. at 2B).1 Before the Court is Martinez's Supplemental Motion to Dismiss Plaintiff's claim for failure to

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exhaust administrative remedies or, in the alternative, for failure to state claim under Federal
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Rule of Civil Procedure 12(b)(6) (Doc. #59). Plaintiff responded and Defendant replied
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(Doc. ##62, 63). The Court will deny the motion.
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I.
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Background Plaintiff's claim arose in December 2003 during his confinement at the ADC facility

in Florence (Doc. #15 at 1). Plaintiff alleged that when he received $100 in the mail on
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Upon screening, the Court dismissed Moses, Miller, Rodriguez, Stuart, Stackwisch, Marlatte, Fischer, Greely, Schmidt, Allen, Dasch, Roberts, Buck, Lawrence, Whitley, Marshall, Lamb, Gibson, Bolt, Queen, Stewart, Gordon, Nelson, Coffey, Walker, Schmeir, McConnell, and Schriro as Defendants (Doc. #16).
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December 11, Martinez used those funds to reimburse the ADC for legal fees and expenses; Plaintiff's remaining balance was 32 cents (Doc. #15 at 6D, Count VI). Later that same month, Plaintiff received another $100 from which the ADC Banking Staff deducted approximately $70 for legal expenses (id.). Plaintiff received a printout on January 9, 2004 that indicated he had a spendable balance of $31.26; yet, when he attempted to place orders at the store, he was told that his account was overdrawn from December 27 to January 25 (id.). On January 2, he was denied indigent legal supplies due to the "lack of disbursement form," although the form was attached to his request order (id.). Plaintiff claimed that deductions from his account, without notification or explanation in some instances, violated his right to speech through use of the mail in that he was "hostage to the `privilege' of how much money banking says you can use, if any!" (id.). As a result, Plaintiff was often unable to meet his mailing needs, for which his family sent him the money (id.). Plaintiff's only other claim that survived screening by the Court was Count VII against Rollins, Gay, Trujillo and Naraine (Doc. #15 at 6E; Doc. #16 at 8). Count VII alleged First Amendment violations stemming from the prohibition on his attempts to send mail to the ADC Director through the regular mail, rather than the Inmate Letter System (Doc. #15 at 6E).2 Rollins, Gay, and Trujillo moved to reconsider the screening Order and sought dismissal of Counts VI and VII on the ground that Plaintiff failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. #34). In his First Amended Complaint, Plaintiff alleged that he did not grieve the claim in Count VI because Corrections Officer (CO) III Schmeir and other staff told him that deductions from his account were not grievable (Doc. #15 at 6D). Regarding Count VII, Plaintiff indicated that he was threatened and grieving his claim would have been ineffectual (id. at 6F). Defendants disputed Plaintiff's claim that ADC staff told Plaintiff he could not grieve deductions and argued that the ADC grievance policy--Department Order (DO)

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The Court dismissed Counts I-V and Count VII in part in its screening Order (Doc.
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#16).
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802--specifically enables inmates to grieve issues relating to institutional procedures, property, and conditions of confinement (Doc. #34 at 3-4). Defendants further argued that futility is not an exception to the exhaustion requirement; thus, Plaintiff was required to grieve Count VII prior to bringing this action (id.). In response to the motion, Plaintiff asserted that he was denied paperwork to grieve his claims and that attempts to grieve issues were often met with threats and abuse (Doc. #38). He further alleged that in retaliation for writing grievances, he has been disciplined and punished with the denial of work opportunities (id. at 3, 7). The Court found that Plaintiff's belief that the grievance system would not provide him with a positive outcome did not excuse his obligation to use the grievance process (Doc. #49). Defendants' motion was therefore granted and the action was dismissed for lack of exhaustion (id.). Plaintiff appealed the dismissal to the Ninth Circuit Court of Appeals (Doc. #51). The Ninth Circuit affirmed the dismissal of Plaintiff's claim concerning the prison inmate mail system (Count VII), but reversed and remanded as to dismissal of the claim related to Plaintiff's inmate trust account in light of his allegation that prison staff told him that account deductions are not grievable (Count VI) (Doc. #56). In its mandate, the Court of Appeals directed the district court to consider this claim in light of the supervening decision in Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005), which held that a prisoner need not press on to exhaust further levels of review once he has received all "available remedies at an intermediate level of review or been reliably informed by a prison administrator that no remedies are available" (id.). On remand, the Court allowed the parties additional time to brief the issue raised by Brown (Doc. #57). The sole Defendant, Martinez, filed a Supplemental Motion to Dismiss for failure to exhaust remedies for Count VI (Doc. #59). Alternatively, Defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (id.). The Court informed Plaintiff of his obligation to respond to the motion and Plaintiff submitted a response (Doc. ##60, 62). Plaintiff claimed that Defendant failed to meet her burden to demonstrate that remedies were available (id.). Defendant replied that because
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Plaintiff did not raise in his First Amended Complaint the allegation that he was refused forms, the Court should not now consider that claim (Doc. #63). She further argued that Plaintiff wholly failed to address the Ninth Circuit's remand issue or Defendant's Rule 12(b)(6) motion (id. at 4). II. Exhaustion A. Legal Standard

Plaintiff must first exhaust "available" administrative remedies before bringing this action. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown, 422 F.3d at 934-35. He must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo, 126 S. Ct. 2378, 2384 (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). Exhaustion is an affirmative defense. Jones v. Bock, 127 S. Ct. 910, 919-921 (2007). Defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's &

Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). As stated, the Ninth Circuit has held that an inmate "need not press on to exhaust further levels of review once he has either received all `available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Brown, 422 F.3d at 935. B. Parties' Contentions

Defendant's Supplemental Motion to Dismiss argues that the decision in Brown does not alter the conclusion that Plaintiff failed to exhaust (Doc. #59). Defendant contends that if a prison administrator orally informs an inmate that there are no available remedies when,
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in fact, there are, that information is not reliable and thus cannot be the basis for an inmate's nonexhaustion (id. at 6). Defendant relies on the Supreme Court's subsequent holding in Woodford v. Ngo, which determined that proper exhaustion requires compliance with the grievance system's procedural rules (id., citing Woodford, 126 S. Ct. at 2385). Defendant argues that Brown does not survive Woodford to the extent that Woodford's requirement that inmates properly exhaust precludes any reliance on the statements of prison administrators if those statements contradict the explicit written policy governing the grievance process (Doc. #59 at 6). Defendant further argues that Brown indicates that an inmate must actually initiate a grievance and be told that no remedies are available before he can be excused from pressing on; it is not enough to rely on potentially incorrect information without a written grievance (id.). This ensures that the information provided to an inmate regarding the availability or unavailability of a remedy is made in connection with an actual, ongoing grievance. Alternatively, Defendant argues that Count VI fails to state a constitutional claim against her and that Plaintiff had additional state law remedies, thereby precluding a claim under § 1983 (id. at 9-10). In response, Plaintiff claims that he did not submit a grievance on his claim because he was told that the issue was not grievable and he was refused the proper forms (Doc. #62 at 1). In an accompanying affidavit, Plaintiff attests to the specific details surrounding the denial of grievance forms by CO III Schmier on various occasions (Doc. #62, Pl. Aff. ¶¶ 12, 16-17). Plaintiff identified numerous instances in which Schmier came by to either drop off financial paperwork or walk through the pod; however, each time Schmier refused any of Plaintiff's requests to talk (id. ¶¶ 11, 18-19, 21, 23-25, 29, 32). When Plaintiff specifically requested a form to grieve an issue regarding the "NSF" (non-sufficient funds) in his account, Plaintiff attested that Schmier told him that financial issues and deductions were not grievable (id. ¶ 28). Plaintiff argues that Schmier's refusal to provide any inmate letter forms, which must be filed prior to submitting a grievance, prevented Plaintiff from initiating the grievance process with respect to his claim, thereby foreclosing any available remedies (id. ¶ 33).
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III.

Analysis A. Administrative Remedies

Section 1997e(a) of the PLRA provides that, "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The administrative remedies at the ADC are set forth in DO 802 and consist of 4 steps: 1) Step 1 requires inmates to attempt to resolve complaints informally by submitting an inmate letter to the CO III (Doc. #59, Ex. C, DO 802.08 and 802.09 § 1.1.1); 2) Step 2 provides that an inmate shall submit a formal grievance to the coordinator that includes a description of the complaint and the informal attempts made to resolve the problem (id., DO 802.09 § 1.1.3). The inmate shall provide a copy of the CO III's response to his inmate letter with his formal grievance (id., DO 802.09 § 1.1.4); 3) Step 3 is an appeal to the Warden or Deputy Warden (id., DO 802.09 § 1.3.1); and 4) Step 4 is an appeal to the Director, and the Director's response is final (id., DO 802.09 §§ 1.4, 1.4.4). B. "Reliably Informed" that No Administrative Remedies are Available

Plaintiff attested that on August 12, 2003, he asked Schmier for a form to grieve an issue concerning his inmate account and Schmier told him that financial issues and deductions were not grievable (Doc. #62, Pl. Aff. ¶ 28). According to the ADC's grievance procedures, the initial form required to grieve an issue would have been an inmate letter form. Defendant's first argument is that even if Schmier incorrectly told Plaintiff that he could not grieve deductions, it would not have excused Plaintiff's obligation under Woodford to properly exhaust; "when a prison administrator volunteers information that contradicts known, explicit, written policy setting forth the process required to exhaust properly, that information should by definition, be unreliable" (Doc. #59 at 6). Defendant argues that because such information is "unreliable," it does not fall under the exception in Brown (id.). The Court finds Defendant's reasoning untenable.
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Although Defendant claims that the grievance policy was "explicit" and "[n]o reasonable reading of DO 802 suggests that it does not apply to Patterson's Inmate Banking Claim," the Court does not find such clarity in the policy (see Doc. #59 at 6, 8). DO 802.01 provides: 1.1.1 Inmates may use the grievance process for the following issues: 1.1.1.1 Property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement (Doc. #59, Ex. C). Notably absent in this list of grievable issues is anything referring to inmate accounts, trust accounts, banking, or deductions. Defendant states that banking issues fall under property, institutional procedures, and Department Written Instructions (Doc. #59 at 3). Even so, it is conceivable that an inmate may not realize that he could grieve a banking complaint in the same manner as a claim regarding mail, food service, medical care, or religious concerns--which are explicitly listed as allowed grievance issues. It was Schmier's duty to provide the correct information to a prisoner inquiring about the grievance system. The evidence demonstrates that the CO III is the officer assigned to assist inmates with grievances (Doc. #59, Ex. C, DO 802.08 § 1.3 ("[The CO III shall:] Investigate and attempt to resolve the complaint informally"); DO 802.03 § 1.5 ("The inmate's assigned CO III shall assist the inmate with completing any grievance form . . ."); and DO 802.04 § 1.2 ("Assistance shall include explanations about how a grievance is filed, resolved, and appealed, as well as the completion of forms"). Thus, it was reasonable for Plaintiff to rely on information provided to him by Schmier--the officer obligated under DO 802 to answer questions about and assist inmates with the grievance policy. Moreover, if Schmier incorrectly told Plaintiff deductions were not grievable it was not Plaintiff's place, as a prisoner, to second guess the officer. Indeed, if a prisoner refused to accept a CO III's advice or accused the CO III of being wrong, it could subject the prisoner to punishment. The "reliability" of Schmier's statement arises from his position as CO III and the duties prescribed to him under DO 802; it does not turn on whether Schmier's advice to Plaintiff

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was ultimately right or wrong. As a result, the information about the inability to grieve deductions provided by Schmier to Plaintiff was reliable as construed under Brown. C. Initiation of Grievance

Defendant's second argument is that Brown applies only when information is provided to a prisoner in response to a specific grievance that had been filed; because Plaintiff never initiated a written grievance for his complaint, Schmier could not consider an "actual, written grievance" and Plaintiff's failure to exhaust cannot therefore be excused (Doc. #59 at 6). This contention is also unpersuasive. There is nothing in Brown that limits its holding to those instances where a written grievance has already been filed. The Ninth Circuit held that information provided by prison officials to inmates is pertinent because it "informs our determination of whether relief was, as practical matter, `available.'" Brown, 422 F.3d at 937. Information provided by officials to prisoners includes verbal instructions and advice. Similarly, numerous courts have held that "a remedy that prison officials prevent a prisoner from utilizing is not an `available' remedy under § 1997e(a)." Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (citations and some internal punctuation omitted); see Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (finding that district court erred in failing to consider prisoner's claim that he was unable to submit a grievance and thus lacked available remedies because officials refused to provide him with the necessary forms); Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (holding that if prison officials informed the prisoner that he could not file a grievance, the formal grievance proceeding "was never `available' to Brown within the meaning of 42 U.S.C. 1997e"); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (holding that prisoner exhausted his available administrative remedies when officials failed to respond to his informal resolution request, thereby precluding the filing of a grievance). If a prison official refuses to provide an inmate with grievance forms when requested, "it is difficult to understand how the inmate has any available remedies." Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (per curiam).

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The holding in Woodford does not affect the Brown principle that a remedy must be available before a prisoner can properly exhaust. In Woodford, the plaintiff filed a grievance alleging that he was wrongfully denied participation in "special programs" at the California prison where he was housed. Woodford, 126 S. Ct. at 2383-84. After his grievance was rejected as untimely, the plaintiff appealed to higher levels of review and ultimately brought suit in federal district court. The Supreme Court held that under § 1997e(a) prisoners must properly exhaust, which includes compliance with any deadlines and other critical procedural rules. Id. at 2387. But in Woodford, there was no allegation that the reason for the prisoner's delay in filing a grievance was attributable to factors outside of his control, such as prison guards misleading inmates about what claims may be grieved or impeding access to grievance forms. Indeed, Woodford specifically states that its holding does not address situations where an inmate alleges that prison officials have purposefully devised procedural requirements that are designed to trip "up all but the most skillful prisoners." Woodford, 126 S. Ct. at 2393. And that is exactly what Plaintiff alleges here. He asserts that the ADC "does everything possible to delay, deny, destroy" the grievance process and does not adhere to its own rules (Doc. #62 at 4). Thus, the holding in Woodford does not have the impact that Defendant attributes to it. Regarding the availability of the grievance system, Defendant concedes that it is the CO III who must make the inmate letter forms available to a prisoner to initiate the grievance process (Doc. #59, Ex. A, Schmier Aff. ¶¶ 3-4; Doc. #63 at 4). Plaintiff attests that Schmier consistently refused to give out inmate letter forms (Doc. #62, Pl. Aff. ¶ 33).3 Defendant notes that in his First Amended Complaint, Plaintiff merely stated that he was told deductions were not grievable; he did not allege that he was refused forms (Doc. #63 at 1; see Doc. #15 at 6D). She contends that because Plaintiff never moved to amend the pleading to raise this

Defendant objects to Plaintiff's Exhibit 1, which sets forth a list of dates and descriptions of his interactions with CO III Peck and Schmier (Doc. #62, Ex. 1), on the grounds that it is inadmissible hearsay, undated, and unreliable (Doc. #63 at 2 n. 1). Because the Court does not consider Exhibit 1, and instead refers only to Plaintiff's affidavit, the objection is unnecessary and will be overruled.
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additional excuse for nonexhaustion, the Court should not consider it now (Doc. #63 at 1-2). Defendant further argues that the Ninth Circuit remanded only on the issue of whether Plaintiff was "reliably informed" that no remedies were available; thus, whether Plaintiff was denied forms is not at issue (id.). Defendant's argument is deficient for three reasons. First, exhaustion is not a pleading requirement; no amendment was necessary to raise additional claims regarding exhaustion. Jones, 127 S. Ct. at 921. Second, Plaintiff's new allegation regarding the denial of forms does not contradict his claim that he was told by Schmier and others that he could not grieve deductions. Finally, Plaintiff's explanation regarding the denial of forms goes directly to Defendant's argument that Brown does not apply unless a written grievance is actually filed. As such, the claim regarding the denial of forms does not fall outside of the scope of the remand. Defendant failed to rebut Plaintiff's claims that he was told he could not grieve deductions and officials refused to give him the proper forms.4 So unlike the plaintiffs in Brown, Plaintiff was not able to actually avail himself of the grievance process. The lack of a written grievance does not change the conclusion that Plaintiff reasonably relied on Schmier's statement that deductions could not be grieved; thus, the grievance process was unavailable. D. Issue Preclusion

In a footnote, Defendant asks the Court to take judicial notice of its Order in a prior case filed by Plaintiff, CV 03-2179-PHX-PGR (VAM). Defendant argues that because the Court found in that case that Plaintiff failed to submit evidence that Schmier denied grievance forms, Plaintiff should be precluded from re-litigating the issue (Doc. #63 at 3 n. 2).
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Defendant requests that the Court consider a copy of Schmier's affidavit that was filed in a separate action, CV 03-2179-PHX-PGR (VAM), solely for the purpose of showing the time period when Schmier was Plaintiff's assigned CO III (Doc. #59 at 3 n. 1). The Court will grant the request. As such, there is no sworn statement from Schmier refuting Plaintiff's claim in this action that Schmier informed him deductions were not grievable and denied forms.
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Issue preclusion is applicable when three conditions are met: (1) the issue in question was resolved by a judgment on the merits in a prior suit; (2) the second action involves the same parties or their privies; and (3) the issues litigated in the two actions are identical. Central Delta Water Agency v. U.S., 306 F.3d 938, 953 (9th Cir. 2002); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399 (9th Cir. 1992). The claims in Plaintiff's prior action included a due process violation in connection with an abusive search of his cell and an allegation that Plaintiff was denied access to his stored property (see Doc. #45 at 2-4, CV 032179-PHX-PGR (VAM)). The instant action concerns deductions from Plaintiff's inmate account. The two suits are therefore not identical for estoppel purposes. In addition, Martinez--the sole remaining Defendant in the instant action--was not named as a Defendant in the prior action. Consequently, issue preclusion does not apply. E. Prior Grievance

Plaintiff concedes that a few years prior to this lawsuit, he submitted a grievance challenging an alleged erroneous deduction of money from his inmate account (Doc. #38 at 3). Defendant contends that although Plaintiff was dissatisfied with the result of that grievance, it nonetheless demonstrates that the issue was grievable (Doc. #59 at 8). But upon review of Plaintiff's earlier response memorandum, the Court notes that the "result" of that earlier grievance was no response at all (Doc. #38 at 3). The lack of response to his earlier attempt to grieve could support a conclusion that the issue was not grievable. Yet Plaintiff attempted to grieve an inmate account issue again in 2003 and was advised by Schmier of the inability to grieve deduction issues (Doc. #62, Pl. Aff. ¶ 28). As stated, reliance on this information from Schmier was reasonable. Thus, the prior grievance--filed years

before--does not demonstrate that administrative remedies were available for the claim raised in this action. F. Timing of Plaintiff's Banking Claim

Schmier's interactions with Plaintiff were between July and September 2003 (Doc. #59, Ex. A, Schmier Aff. ¶ 8; see Doc. #59 at 3 n. 1). Plaintiff's claim regarding the deductions from his account arose in December 2003 (Doc. #15 at 6D). Defendant argues
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that nothing Schmier may have told Plaintiff three months prior to his alleged banking problem could constitute reliable information regarding whether he could have grieved his claim (Doc. #59 at 9). But Defendant does not provide any legal support for this assertion, nor does she explain how information from a prison official that is reasonably relied upon would change in a just a few months. There is no indication that there were changes in the prison banking policy or grievance policy during that time frame. The Court therefore finds that is was not unreasonable for Plaintiff to rely on information Schmier provided about the inability to grieve deductions, even though that information came three months prior to his claim. In sum, Defendant did not refute Plaintiff's evidence that Schmier informed him that deductions cannot be grieved, nor did Defendant demonstrate that "pertinent relief remained available" to Plaintiff after he was reliably informed that the grievance process could not be used. Brown, 422 F.3d at 936-37. Consequently, Defendant has failed to carry her burden to prove nonexhaustion, and the unenumerated Rule 12(b) motion will be denied. III. Rule 12(b)(6) Motion to Dismiss A motion brought under Rule 12(b)(6) is a challenge to the sufficiency of the pleading. A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). For purposes of ruling on a Rule 12(b)(6) motion, the Court must consider only the contents of the complaint, take as true the material facts alleged in the complaint, and construe the complaint in the light most favorable to Plaintiff. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Hospital Bldg. Co. v Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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A motion to dismiss under Rule 12(b)(6) is almost never an appropriate response when the court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) and directed the defendants to respond. The standard for dismissal under Rule 12(b)(6) ("failure to state a claim upon which relief can be granted") is identical to the standard under 28 U.S.C. § 1915A(b) ("fail[ure] to state a claim upon which relief may be granted"). After the Court has screened a prisoner complaint pursuant to § 1915A(b), a Rule 12(b)(6) motion to dismiss will be granted only if the defendant can convince the Court that reconsideration is appropriate. Nothing in Defendant's Rule 12(b)(6) motion causes the Court to reconsider its prior determination that Count VI of the First Amended Complaint states a claim upon which relief can may granted. Defendant's alternative argument--that Plaintiff had additional post-deprivation remedies under state law to pursue--is likewise unavailing. One of the additional remedies Defendant points to is the prison grievance system, which the Court has determined was unavailable. The other remedy Defendant presents is to use the inmate grievance system to file a risk management claim pursuant to DO 909.12 § 1.1 (Doc. #59 at 10-11; Ex. D). But this appears to be simply part of the ADC grievance process, albeit with an additional step for property claims. Because the grievance procedures were not available, Plaintiff did not have a post-deprivation remedy by way of a risk management claim. At this stage, there is no evidence that Plaintiff had a suitable post-deprivation remedy outside of a § 1983 action; the Rule 12(b)(6) motion will therefore be denied. IV. Costs and Attorney's Fees Defendant requests that the Court award her costs and attorney's fees pursuant to 42 U.S.C. § 1988 (Doc. #59 at 11; Doc. #63 at 8). Under § 1988, a district court may award attorney's fees to a prevailing defendant only in limited circumstances; if the plaintiff's underlying claim is frivolous or without foundation. Maag v. Wessler, 993 F.2d 718, 719 (9th Cir. 1993). In ruling on the Supplemental Motion to Dismiss, the Court cannot find that Plaintiff's claims were frivolous or without foundation. More importantly, because the

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motion will be denied, Defendant is not the prevailing party under § 1988; thus, Defendant is not entitled to costs and attorney's fees. IT IS ORDERED that Defendant's Supplemental Nonenumerated Rule 12(b) Motion to Dismiss or, in the alternative, Rule 12(b)(6) Motion to Dismiss (Doc. #59) is denied. DATED this 25th day of July, 2007.

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