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28 All further references to a “Rule” are to the Federal 1

Rules of Civil Procedure.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

MITCHELL J. KLEMASKE, on

behalf of himself and all

others similarly situated,

NO. CIV. S-04-1750 FCD KJM P

Plaintiff,

v. MEMORANDUM AND ORDER

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION, et al.,

Defendants.

_________________________/

----oo0oo----

This matter comes before the court on defendants’

motion to dismiss plaintiff’s complaint pursuant to Rule 12(b)(1)

and motion for a more definite statement pursuant to Rule 12(e)

of the Federal Rules of Civil Procedure. For the reasons set 1

forth below, defendants’ motion to dismiss is GRANTED in part and

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Because oral argument will not be of material 2

assistance, the court orders this matter submitted on the briefs. 

E.D. Cal. Local Rule 78-230(h).

The facts of this case are taken from plaintiff’s 3

allegations in the complaint.

2

DENIED in part. Defendants’ motion for a more definite 2

statement is DENIED.

BACKGROUND3

Plaintiff Mitchell J. Klemaske is a state prison inmate,

currently incarcerated at the California Institute for Men

(“CIM”) in Chino, California. (First Am. Compl. (“FAC”), filed

Nov. 9, 2005, ¶ 7). Plaintiff is a nonviolent offender who is

qualified to live in Level I housing and to participate in the

Conservation Camp Program. (Id. ¶ 14). Plaintiff also has a

psychiatric disability. (Id. ¶ 7).

Plaintiff brings this action under the Americans with

Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and

California Government Code § 11135. Plaintiff alleges that

defendants have “adopted, implemented, ratified, and/or failed to

abolish unnecessary and discriminatory policies, practices, and

procedures affecting the inmates with psychiatric disabilities.” 

(Id. ¶ 15). Specifically, plaintiff asserts that he was

unnecessary excluded or screened out from placement in the

Conservation Camp Program and excluded from Level I housing

assignments. (Id.) As a result of this alleged discrimination,

plaintiff was denied equal access to prison programs, services,

and activities. (Id. ¶ 16). Plaintiff also asserts that the

alleged discrimination afforded him less advantageous credit

earning status. (Id. ¶¶ 30, 36, 43). As a result, plaintiff

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seeks “an order granting such other injunctive relief as may be

appropriate,” declaratory relief, compensatory damages, costs and

attorneys’ fees, and such other relief as the court deems just

and proper.

Defendants filed a motion to dismiss pursuant to Rule

12(b)(1) on November 23, 2005. Defendants contend that this

court does not have jurisdiction over plaintiff’s claims because

they necessarily affect the length of plaintiff’s incarceration. 

Defendants also filed a motion for a more definite statement

pursuant to Rule 12(e), arguing that plaintiff’s complaint should

allege which major life activity has been affected by plaintiff’s

alleged disability. 

STANDARD

A. Rule 12(b)(1): Subject Matter Jurisdiction

Lack of subject matter jurisdiction may be asserted by

either party or the court, sua sponte, at any time during the

course of an action. Fed. R. Civ. P. 12(b)(1). Once challenged,

the burden of establishing a federal court’s jurisdiction rests

on the party asserting the jurisdiction. See Farmers Ins. Exch.

v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.

1990). There are two forms of 12(b)(1) attacks on subject matter

jurisdiction: facial and factual attacks. See Thornhill Publ’g

Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.

1979). In an action such as this, where defendant contends that

the lack of federal jurisdiction appears from the “face of the

complaint,” the allegations in the complaint are taken as true

for the purposes of the motion. Id.

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B. Rule 12(e): More Definite Statement

A motion for a more definite statement should not be granted

unless a pleading is “so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading.” Fed. R.

Civ. P. 12(e). This liberal standard is consistent with Fed. R.

Civ. P. 8(a)(2) which allows pleadings that contain a “short and

plain statement of the claim.” The Rules anticipate that the

parties will familiarize themselves with the claims and ultimate

facts through the discovery process. See Famolare, Inc. v.

Edison Brothers Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal.

1981). Indeed, “where the information sought by the moving party

is available and/or properly sought through discovery, the motion

should be denied.” Id. 

ANALYSIS

A. Motion to Dismiss for Lack of Jurisdiction

Defendants contend that the court lacks jurisdiction over

this case because plaintiff is challenging the length of his

confinement. In Preiser v. Rodriguez, the Supreme Court held

that 

when a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief

he seeks is a determination that he is entitled to

immediate release or speedier release from that

imprisonment, his sole federal remedy is a writ of

habeas corpus.

411 U.S. 475, 500 (1973). In Preiser, the respondents were state

prisoners who were deprived of good-conduct-time credits by the

New York State Department of Correctional Services as a result of

disciplinary proceedings. Id. at 476. The prisoners brought

suit under 42 U.S.C. § 1983, alleging that their due process

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rights had been violated when their credits were revoked. Id. 

In each respondent’s case, the restoration of good-conduct-time

credits entitled the prisoner to immediate release on parole. 

Id. at 479-81. However, the Court stated that “even if the

restoration of the respondents’ credits would not have resulted

in their immediate release, but only in their shortening the

length of their actual confinement in prison, habeas corpus would

have been the appropriate remedy.” Id. at 487.

Plaintiff asserts that the Court’s holding in Preiser does

not apply to this case because his claims do not necessarily

affect the length of his confinement. Plaintiff also argues that

ir is well established that the ADA applies to state prisons. 

Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206

(1998). Defendants do not dispute that a state prisoner can sue

for prospective relief or monetary relief under the ADA. Rather,

defendants argue that if plaintiff prevails, the retroactive

award of credit that was not initially given would necessarily

affect the length of plaintiff’s term of imprisonment. 

In Yeskey, as well as subsequent Ninth Circuit opinions, the

issue of whether reinstatement of past good-time credit that

would shorten a prisoner’s sentence was not directly addressed. 

See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002)

(plaintiffs seeking prospective relief only); Lee v. City of Los

Angeles, 250 F.3d 668, 690-92 (9th Cir. 2001) (remanding to give

plaintiffs opportunity to amend ADA claim). However, without an

explicit exception for the reinstatement of good-time credits

pursuant to an ADA, RA, or state disability claim, the mandate of

the Supreme Court in Preiser is clear and must be followed by the

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The Preiser Court made no finding that this holding was 4

in any way limited to actions brought pursuant to 42 U.S.C. §

1983.

6

court. Where a prisoner seeks a determination that he is

entitled to a speedier release and requests injunctive relief

granting or reinstating past good-time credit, the exclusive

federal remedy is a writ of habeas corpus. See Preiser, 411 U.S.

at 500. 

4

In his complaint, plaintiff requests injunctive relief, but

does not enumerate what specific relief he seeks. Therefore, to

the extent that plaintiff seeks the court to order the award of

past good time credit, defendants’ motion is GRANTED. However,

to the extent that plaintiff seeks prospective injunctive relief,

declaratory relief, or monetary relief, defendants’ motion is

DENIED. 

B. Motion for a More Definite Statement

Defendants request the court to order plaintiff to provide a

more definite statement because plaintiff’s complaint “fails to

allege any facts indicating that he does in fact have a

disability.” (Def.’s Mot., filed Nov. 23, 2005, at 5). 

Plaintiff’s complaint need only contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. Proc. 8(a)(2); Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 508 (2002). “[U]nder a notice pleading

system, it is not appropriate to require a plaintiff to plead

facts establishing a prima facie case.” Swierkiewicz, 534 U.S.

at 511. Rather, the complaint must simply “‘give the defendant

fair notice of what the plaintiff’s claim is and the grounds upon

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which it rests.’” Id. at 512 (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)). The liberal notice pleading standard “relies on

liberal discovery rules and summary judgment motions to define

disputed facts and issues and to dispose of unmeritorious

claims.” Id. A motion for a more definite statement should not

be granted unless a pleading is “so vague or ambiguous that a

party cannot reasonably be required to frame a responsive

pleading.” Fed. R. Civ. P. 12(e).

Plaintiff’s complaint alleges that he has a psychiatric

disability as defined by the ADA and the RA. This, in addition

to the other facts alleged by plaintiff, is sufficient to put

defendants on notice of the grounds for plaintiff’s claims. 

Plaintiff’s failure to identify the major life activity affected

by his disability does not render the complaint so vague or

ambiguous that defendant could not reasonable frame a responsive

pleading. As such, defendants’ motion for a more definite

statement is DENIED.

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CONCLUSION

For the foregoing reasons, defendants’ motions are GRANTED

in part and DENIED in part. To the extent that plaintiff’s

claims seek an award of past good-time credit, defendants’ motion

is GRANTED and plaintiff’s claim is dismissed for lack of

jurisdiction. To the extent that plaintiff’s claims seek

prospecting injunctive relief, declaratory relief, or monetary

relief, defendant’s motion to dismiss is DENIED. Defendants’

motion for a more definite statement is DENIED.

 

IT IS SO ORDERED.

DATED: February 1, 2006

 /s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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