Appeal from the United States District Court for the Western District of Washington at Tacoma Robert J. Bryan, District Judge, Presiding D.C. No.3:09-cv-05571-RJB-KLS
The opinion of the court was delivered by: Kobayashi, District Judge:
Argued and Submitted June 8, 2012-Seattle, Washington
Before: Barry G. Silverman and Mary H. Murguia, Circuit Judges, and Leslie E. Kobayashi, District Judge.*fn1
Opinion by Judge Kobayashi
Plaintiff-Appellant Donald Lyle Stratton ("Stratton") appeals from the judgment in favor of Defendant-Appellee Dale Brown ("Brown") entered pursuant to the order granting Brown's motion to dismiss for failure to exhaust administrative remedies.*fn2 Stratton argues that the district court erred in considering matters outside of the pleadings and in dismissing his case because the district court failed to provide him with notice of the requirements for a response to a motion to dismiss for failure to exhaust administrative remedies in which the district court considers documents beyond the pleadings. Stratton also argues that the district court erred in concluding that he failed to exhaust his administrative remedies.
We hold that Stratton was entitled to notice - similar to the notice for motions for summary judgment described in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) - explaining the requirements for a response to Brown's motion to dismiss for failure to exhaust administrative remedies and the consequences if the district court granted the motion. We further hold that Stratton had a substantial right to such notice and that the district court's failure to provide such notice was not harmless.
We therefore reverse the dismissal of Stratton's claims against Brown and remand this case to the district court for further proceedings.
FACTS AND PROCEDURAL HISTORY
On August 17, 2008, Stratton was assaulted by a fellow inmate at the Stafford Creek Corrections Center ("SCCC"). While Stratton was in a protective custody holding cell after the assault, Brown, a registered nurse at SCCC, saw him lying on the floor. Brown asked Stratton, "what hurts, what happened, are you in pain, why were you assaulted . . . ?" Defendant-Appellee Julie Buck, M.D. ("Dr. Buck") examined Stratton after the fire department transported him to the Emergency Department at the Grays Harbor Community Hospital.
Stratton's complaint, filed November 16, 2009, alleged that Dr. Buck's and Brown's failure to provide pain medication to him violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to due process. Throughout the district court proceedings, Stratton represented himself pro se.
Brown filed a Motion to Dismiss on March 31, 2010. On July 1, 2010, the magistrate judge filed her Report and Recommendation to grant Brown's Motion to Dismiss. The magistrate judge concluded that Stratton failed to exhaust his administrative remedies and that it was unnecessary to reach Brown's other arguments in favor of dismissal. On July 26, 2010, the district judge issued his order adopting the Report and Recommendation and dismissing Stratton's claims against Brown without prejudice. Also on July 26, 2010, Stratton filed objections to the Report and Recommendation. On July 28, 2010, the district judge issued an order affirming his July 26, ...