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

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The Court notes that it has considered the plaintiff's "Reply to Def's Response to Pl's 2nd Reply to Def's Motion to Dismiss" (doc. #34), filed November 29, 2005, notwithstanding that (continued...)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barry Northcross Patterson, Plaintiff, vs. N. Nelson, et al., Defendants.

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No. CV-04-0603-PHX-PGR (VAM) ORDER and OPINION

The only remaining portions of this action, brought pursuant to 42 U.S.C. § 1983, are the plaintiff's claims in Counts II and III of his complaint that Lieutenant Kane violated his First and Eighth Amendment rights by retaliating against him for wanting to sit at a racially integrated table during chow and by threatening his safety by having another inmate attack him. Pending before the Court is defendant Kane's Rule 12(b) Motion to Dismiss Pursuant to 42 U.S.C. § 1997e(a) (doc. #15), wherein the defendant argues that this action should be dismissed due to the plaintiff's failure to exhaust his prison administrative remedies prior to filing this action. Having considered the parties memoranda in light of the evidence of record, the Court finds that the motion should be granted.1

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Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions ... by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective." Porter, 534 U.S. at 524 (Internal quotation marks omitted.) The defendant has the burden of raising and proving the absence of exhaustion, and in deciding a motion to dismiss based on the failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.), cert. denied, 540 U.S. 810 (2003). If the Court concludes that the prisoner failed to exhaust all available administrative remedies prior to initiating his federal lawsuit, the proper remedy is dismissal without prejudice. Id. The basis of the defendant's motion is that the plaintiff did not exhaust his administrative remedies regarding his claims in Counts II and III, which claims involve conditions of the plaintiff's confinement, because he failed to appeal the denial of his grievance relevant to those claims to the Director of the Arizona Department of Corrections, which is the final step of the ADOC's grievance procedure for inmate complaints concerning ADOC staff. The defendant's position is supported by significant probative evidence in the form of declarations

(...continued) the plaintiff had no right to file what is in effect a supplemental response to the motion to dismiss without's the Court's permission.

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from knowledgeable ADOC staff members which are based on ADOC records.2 The plaintiff does not dispute that he did not submit an inmate grievance appeal concerning the claims at issue to the Director in compliance with the ADOC grievance procedure, and a prisoner's concession to nonexhaustion is a valid ground for dismissal so long as no exception to exhaustion applies. Wyatt v. Terhune, 315 F.3d at 1120. As the Court understands the plaintiff's response(s) to the motion to dismiss, he is contending in part that his conceded nonexhaustion should be excused because he never received the grievance response from Deputy Warden Tucker. The plaintiff states in this regard that he did not know about Tucker's denial of his grievance until a copy of it was attached as an exhibit to the defendant's motion, almost 2½ years later. The Court is unpersuaded by this argument. First, the plaintiff has not submitted any affidavit or unsworn declaration supporting his bare contention that he did not receive Tucker's response notwithstanding that the Court warned him in an order (doc. #31), entered on October 27, 2005, that his complaint would be dismissed if he did not submit admissible evidence sufficient to show that he exhausted all available remedies. Second, even assuming that the plaintiff did not receive Tucker's response, as a frequent grievance filer who at the time at issue allegedly knew the inmate grievance procedure "impeccably", he was aware of the time limits in which a response from Tucker was due under the grievance procedure and for him to assume for 2½ years that his grievance had not been responded to is simply
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The uncontroverted evidence of record is that the plaintiff, in accordance with the ADOC's grievance procedure regarding complaints against ADOC staff, DO 802.12, submitted his informal complaint against defendant Kane on August 8, 2002 which was responded to on August 21, 2002, that the plaintiff's initial formal grievance, which was filed on August 30, 2002, was returned to him because he filed it on the wrong form, that he re-filed his formal grievance, case no. A14-242-02, against the defendant on September 13, 2002, and that Deputy Warden Tucker responded to the grievance on October 1, 2002 by upholding the action of defendant Kane and informing the plaintiff that he had ten days in which to file his appeal to the next level, i.e., the Director's level.

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unreasonable.3 Furthermore, as the defendant points out without contravention from the plaintiff, no response from Tucker was actually necessary for the plaintiff to appeal to the Director once the deadline for Tucker's response expired since the grievance procedure provides that the "[e]xpiration of the time limit at any level in the process shall entitle the inmate to proceed to the next review level." The plaintiff also argues that he did not appeal his grievance against the defendant to the Director because interference from ADOC staff denied him the opportunity to do so. The Court is also unpersuaded by this portion of the plaintiff's argument. While an administrative remedy may be found to be unavailable for purposes of § 1997e(a) where a prisoner is prevented by prison authorities from pursuing the prison grievance process, see e.g., Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001), the plaintiff may not defeat the defendant's motion by references to problems in general with grievances other than the one at issue, i.e. no. A14-242-02.4 The only evidence submitted by the plaintiff in this regard is his cursory allegations in his verified complaint that, with regards to Counts II and III, he did not appeal his grievance to the highest level because his grievance was stopped by CO III Curran.5 These bare allegations, in and of themselves, are insufficient to establish the prison's grievance appeal procedures were unavailable to him; what is missing is evidence that the plaintiff specifically

The defendant has submitted some evidence showing that the plaintiff disagreed with the ADOC's decision in October 2002 to place him on the ADOC's list of grievance abusers on the ground that he knew the grievance procedure "impeccably" and did not abuse it. There is no dispute that the ADOC placed the plaintiff on its Grievance Abuse List on October 16, 2002 for allegedly engaging in a pattern of submitting numerous inappropriate grievances, the consequence of which was that any of his grievances found to be inappropriate would thereafter be returned to him unprocessed. The plaintiff has not, however, submitted any evidence showing that being placed on such status prevented him from filing an appeal to the Director on the grievance at issue. Curran, a grievance coordinator, has submitted a declaration stating in part that he had never destroyed the plaintiff's grievance paperwork or prevented him in any way from using the inmate grievance system.
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attempted to submit a Director's level appeal regarding grievance no. A14-242-02 and that attempt was foiled by CSO III Curran or some other ADOC staff member. Therefore, IT IS ORDERED that defendant Kane's Rule 12(b) Motion to Dismiss Pursuant to 42 U.S.C. § 1997e(a) (doc. #15) is granted and that this action is dismissed without prejudice. The Clerk of the Court shall enter a judgment accordingly. DATED this 21st day of March, 2006.

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