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Ninth Circuit Requires Notice to Pro Se Prisoner Litigants for Motions to Dismiss for Failure to Exhaust

The Ninth Circuit Court of Appeals held on September 19, 2012 that district courts must give pro se prisoners notice of their rights and duties when responding to a motion to dismiss for failure to exhaust administrative remedies.

In 2008, Washington state prisoner Donald L. Stratton was assaulted by a fellow prisoner and required hospitalization. He later filed suit in federal court against prison nurse Dale Brown and a doctor who examined him at the hospital, alleging they had improperly deprived him of pain medication.

The district court granted Brown’s motion to dismiss under Fed.R.Civ.P. 12(b) for failure to exhaust administrative remedies, and Stratton appealed.

The Ninth Circuit first noted that it had held in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [PLN, April 1999, p.19] “that a pro se prisoner litigant is entitled to ‘fair notice of the requirements and consequences of the summary judgment rule.’”

Because “an unenumerated Fed.R.Civ.P. 12(b) motion to dismiss based on the failure to exhaust administrative remedies is closely analogous to a motion for summary judgment,” the Court of Appeals had previously held in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) [PLN, March 2003, p.24] that “if the district court looks beyond the pleadings in deciding the motion,” it “‘must assure that [the pro se prisoner plaintiff] has fair notice of his opportunity to develop a record.’”

Given the complexity of a motion to dismiss for failure to exhaust administrative remedies, the appellate court recognized that “a pro se prisoner lacking legal sophistication is unlikely to understand how to respond to” the motion. Therefore, “when a district court will consider materials beyond the pleadings in ruling upon a defendant’s motion ... the pro se prisoner plaintiff must receive a notice, similar to” the notice required by Rand for summary judgment motions.

Such notice “must be provided to pro se prisoner plaintiffs at the time the defendants’ motions are filed.” It also “must be phrased in ordinary, understandable language calculated to apprise an unsophisticated prisoner of his or her rights and obligations” under Fed.R.Civ.P. 12(b).

At a minimum, the notice shall explain “the motion to dismiss for failure to exhaust administrative remedies is similar to a motion for summary judgment in that the district court will consider materials beyond the pleadings; the plaintiff has a ‘right to file counter-affidavits or other responsive evidentiary materials’; and the effect of losing the motion.”

Accordingly, the Ninth Circuit reversed the dismissal of Stratton’s suit, finding that the district court’s failure to provide the described notice was not harmless error. See: Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012).

Following remand, the district court dismissed the case without prejudice on May 13, 2013, finding that Stratton had failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act.

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Related legal case

Stratton v. Buck