Free Response in Support of Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 ANNE STRATMAN (022301) 3 Assistant Attorney General 177 N. Church Avenue, Suite 1105 4 Tucson, AZ 85701-1114 (520) 628-6044 Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendant Kane 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV 04-0603-PHX-PGR (VAM) RESPONSE TO PLAINTIFF'S SECOND REPLY TO DEFENDANT'S MOTION TO DISMISS

9 BARRY NORTHCROSS PATTERSON, 10 11 v. 12 N. NELSON, et al., 13 14 15 Defendants. Plaintiff,

Defendant Kane, by and through undersigned counsel, hereby responds to Plaintiff Although

16 Patterson's Second Reply to Defendant's Motion to Dismiss as follows.

17 Patterson has explained at length his efforts to use the prison grievance process and 18 ADC's failures to allow him to properly do so, he has still not shown that he performed 19 the final required step of the grievance process ­ an appeal to the Director. 20 As stated in Defendant's Motion to Dismiss, there are four steps in ADC's

21 grievance process: (1) an informal inmate letter; (2) a formal grievance submitted to the 22 Grievance Coordinator; (3) appeal to the Warden or Deputy Warden; and (4) an appeal to 23 the ADC Director. (See Dkt. 15) For grievances against staff, the same process is used, 24 except the formal grievance is submitted directly to the Deputy Warden or Warden who 25 responds to the grievance, and therefore step three (appeal to Warden or Deputy Warden) 26 is omitted. (Id.) Using either the standard or staff grievance procedure, in order to

Case 2:04-cv-00603-PGR-VAM

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1 exhaust his administrative remedies, Patterson must have submitted his grievance to the 2 prison and appealed all denials of his claims completely through the multi-step process to 3 satisfy the PLRA's exhaustion requirement, even if his grievances are deemed untimely 4 or are otherwise returned to him unprocessed. See Booth v. Churner, 532 U.S. 731 7335 35 (2001). In this case, even if Patterson's allegations are true ­ that he never received a 6 response from the Warden or Deputy Warden and that many of his grievances were 7 returned unprocessed ­ he was still required to appeal his grievance to the Director. Id. 8 Patterson did not appeal his grievance to the Director, and does not claim otherwise. 9 Therefore, he failed to exhaust his prison administrative remedies and his claim should be 10 dismissed. 11 12 13 14 15 16 Copy of the foregoing mailed this __22___ day 17 of November, 2005, to: 18 Barry N. Patterson, # 117045 ASPC-Eyman-Meadows Unit 19 P.O. Box 3300 Florence, AZ 85232-3300 20 CBailey IDS04-0411/G2004-21004/ 935618 21 22 23 24 25 26 2 RESPECTFULLY SUBMITTED this __22__ day of November, 2005. TERRY GODDARD ATTORNEY GENERAL Anne Stratman ANNE STRATMAN Assistant Attorney General Attorneys for Defendant Kane

Case 2:04-cv-00603-PGR-VAM

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