Davis v. Shinn

• Court: District Court, D. Arizona
• Decided: March 2, 2023
• Docket: 4:21-cv-00015
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Leo Davis, No. CV 21-00015-TUC-JGZ 10 Plaintiff, 11 v. ORDER 12 O. Segura, et al., 13 Defendants.

14 15 Plaintiff John Leo Davis, who is currently confined in the La Palma Correctional 16 Center, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 8.) Pending 17 before the Court are two motions: (1) Defendants Eisel, Hannaford, and Oliver’s Motion 18 for [partial] Summary Judgment, which is fully briefed (Docs. 47, 48, 56, 61);1 and (2) 19 Davis’s Motion for Sanctions. (Doc. 71.) For the following reasons, the Court will deny 20 each motion. 21 I. Defendants’ Motion for Summary Judgment 22 In their Motion for Summary Judgment, Defendants Eisel, Hannaford, and Oliver 23 contend that Davis failed to exhaust his administrative remedies. (Doc. 47.) The Court will 24 deny the Motion because, considering the record in the light most favorable to Davis, an 25 exception to the exhaustion procedures for violations of the Prison Rape Elimination Act 26 (PREA) applied to Davis’s initial Formal Grievance. Defendants, however, did not treat 27

28 1 The Court provided Davis with notice of the requirements for a response pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc). (Doc. 51.) 1 the Formal Grievance as implicating PREA and improperly unprocessed it, rendering 2 Davis’s remaining administrative remedies effectively unavailable to him. 3 A. Background 4 On screening pursuant to 28 U.S.C. § 1915A(a), the Court concluded that Davis 5 stated six claims: (1) an Eighth Amendment threat-to-safety claim against Defendant 6 Segura (Count One); (2) a Fourth Amendment search-and-seizure claim against 7 Defendants Eisel, Hannaford, and Oliver in their individual and official capacities (Count 8 Three); (3) an Eighth Amendment cruel-and-unusual-punishment claim against Defendants 9 Eisel, Hannaford, and Oliver in their individual and official capacities (Count Five); (4) a 10 state-law battery claim against Defendants Eisel, Hannaford, and Oliver (Count Seven); 11 (5) state-law negligence claims against Defendants Eisel, Hannaford, and Oliver (Count 12 Eight); and (6) a state-law negligence claim against Defendants Gomez and Segura (Count 13 Nine). (Doc. 10.) The Court dismissed the remaining claims and defendants. (Id.) 14 Following the Defendants’ Motion to Dismiss, the Court also dismissed the state-law 15 claims in Counts Seven, Eight, and Nine. (Doc. 23.) 16 Defendants Eisel, Hannaford, and Oliver argue Davis failed to properly exhaust his 17 available administrative remedies as to Counts Three and Five. (Doc. 47.) Counts Three 18 and Five are based on allegations arising from incidents on April 24, 2020, and May 8, 19 2020. (Doc. 8 at 17–20, 22.) On both dates, Davis was confined at the Arizona State Prison 20 Complex (ASPC)-Alhambra. (Doc. 8 at 17.) Davis alleges that, on each date, Defendants 21 strip searched him and a group of other prisoners with the intention of humiliating, 22 degrading, and sexually abusing him. (Id. at 18.) Davis asserts that the April 24, 2020 strip 23 search occurred in view of opposite-gender staff and the May 8, 2020 strip search occurred 24 in view of staff and security cameras. (Id. at 17.) For both strip searches, Davis alleges that 25 Defendants forced him “to spread his buttock and anus open and cough multiple times” 26 and “when that did not satisfy [Defendants], [he] was forced to penetrate his anus— 27 opening it wider and coughing harder.” (Id.) According to Davis, no emergency situation 28 justified either strip search. (Id.) 1 Department Order (DO) 802 sets forth the process that prisoners must follow to 2 exhaust their administrative remedies for non-medical or “standard” grievances. (Docs. 48 3 ¶ 1; 56-1 ¶ 1.) This process includes three submissions: (1) an Informal Complaint; (2) a 4 Formal Grievance; and (3) a Grievance Appeal. (Docs. 48 ¶¶ 1–11; 56-1 ¶¶ 1–11.) Each 5 step comes with specific deadlines and submission procedures. (Docs. 48 ¶¶ 1–11; 56-1 ¶¶ 6 1–11.) 7 The parties dispute whether, after the two incidents mentioned above, Davis 8 properly completed the first and third steps: the Informal Complaint and Grievance Appeal. 9 (Docs. 48 ¶¶ 13–14, 30–31; 56-1 at 14–16, 41–43.) Defendants argue Davis failed to 10 exhaust his administrative remedies in part because there is no record of Davis submitting 11 an Informal Complaint or Grievance Appeal. (Docs. 47 at 6–7; 48 ¶ 14; 61 at 4–5.) 12 However, it is undisputed that Davis attempted to complete the second step by 13 submitting a May 27, 2020 Formal Grievance for both incidents, which Correctional 14 Officer (CO) Milhoff returned as unprocessed because Davis did not attach a copy of an 15 Informal Complaint. (Docs. 48 ¶ 30; 56-1 at 15.) It is also undisputed that DO 802.08 16 includes an exception where prisoners have no deadline to begin the grievance process and 17 need not complete the first step of filing an Informal Complaint. (See Docs. 48-1 at 15–16; 18 56 at 8–9; 61 at 3.) This exception applies when a prisoner makes a complaint “that 19 describes activity that may be in violation of the Prison Rape Elimination Act (PREA).” 20 (Doc. 48-1 at 15.) 21 PREA prohibits “cross-gender strip searches or cross-gender visual body cavity 22 searches . . . except in exigent circumstances or when performed by medical practitioners.” 23 See 34 U.S.C. § 30307; 28 C.F.R. § 115.15(a). Davis argues, among other things, that the 24 Formal Grievance he attempted to submit on May 27, 2020 fell under DO 802’s exception 25 for PREA violations because it alleged that Defendants unnecessarily strip searched him 26 in front of opposite-gender staff. (See Docs. 48-1 at 45; 56 at 8–9.) Defendants contend 27 that DO 802’s exception does not apply because Davis’s grievance does not describe a 28 1 PREA violation. (Doc. 61 at 3.) Whether Davis exhausted his administrative remedies thus 2 turns on whether his Formal Complaint implicated PREA. 3 B. Legal Standard 4 Summary judgment will be granted when the movant has shown “that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 6 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 7 court must not weigh the evidence but determine whether there is a genuine issue for trial. 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There is no issue for trial unless 9 there is sufficient evidence for a reasonable jury to return a verdict in favor of the 10 nonmovant. Id. In its analysis, the court must believe the nonmovant’s evidence and draw 11 all inferences in the nonmovant’s favor. Id. at 255. 12 Under the Prison Litigation Reform Act, a prisoner must exhaust available 13 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 14 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 15 934–35 (9th Cir. 2005). The prisoner must complete the administrative review process in 16 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 17 Exhaustion is required for all suits about prison life, regardless of the type of relief offered 18 through the administrative process. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. 19 Churner, 532 U.S. 731, 741 (2001). 20 The defendant bears the initial burden to show that there was an available 21 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 22 1162, 1172 (9th Cir. 2014). Once that showing is made, the burden shifts to the prisoner, 23 who must show that he exhausted the administrative remedy or that it was effectively 24 unavailable to him. Albino, 747 F.3d at 1172. The ultimate burden, however, rests with the 25 defendant. Id. 26 // 27 // 28 // 1 C. Discussion 2 To exhaust administrative remedies, ADC prisoners must generally submit an 3 Informal Complaint, Formal Grievance, and Grievance Appeal. (Docs. 48 ¶¶ 1–11; 56-1 4 ¶¶ 1–11.) The Court will address each of Davis’s submissions in turn. 5 First, although the parties dispute whether Davis submitted an Informal Complaint, 6 it is undisputed that prisoners complaining of sexual abuse or conduct “that may be in 7 violation” of PREA need not complete this step. (See Docs. 48-1 at 15–16; 56 at 8–9; 61 8 at 3.) Defendants contend that “[w]hile there is no dispute that strip searches . . . can be 9 very embarrassing and unpleasant, that does not turn them into sexual offenses.” (Doc. 61 10 at 3.) Defendants also argue that Davis failed to specifically claim a PREA violation and 11 allege specific facts that would have alerted staff that his grievance was related to sexual 12 abuse. (Id.) 13 Davis did not need to submit an Informal Complaint to exhaust his administrative 14 remedies because his Formal Grievance alleged conduct that may be in violation of PREA. 15 In his Formal Grievance, Davis alleged that Defendants unnecessarily conducted a group 16 strip search in front of “opposite gender staff . . . in an especially humiliating and degrading 17 manner.” (Doc. 48-1 at 45.) These allegations sufficiently state a potential violation of 18 PREA, which prohibits “cross-gender strip searches or cross-gender visual body cavity 19 searches . . . except in exigent circumstances or when performed by medical practitioners.” 20 See 34 U.S.C. § 30307 (PREA establishing national standards); 28 C.F.R. § 115.15(a) 21 (national standards generally prohibiting cross-gender strip searches); see also West v. 22 Radtke, 48 F.4th 836, 850 (7th Cir. 2022) (“[PREA] acknowledge[s] the relevance of sex 23 to prison strip searches.”). Under DO 802.08, Davis’s allegations sufficiently “describe[] 24 activity that may be in violation of [PREA].” (See Doc. 48-1 at 15–16 (emphasis added).) 25 DO 802.08, moreover, does not require prisoners to explicitly state they are alleging a 26 PREA violation. (See id.) 27 Next, it is undisputed that Davis submitted a May 27, 2020 Formal Grievance for 28 both the April 24, 2020 and May 8, 2020 incidents. (Docs. 48 ¶ 30; 56-1 at 15.) CO Milhoff, 1 however, returned it as unprocessed because Davis did not attach a copy of an Informal 2 Complaint. (Docs. 48 ¶ 30; 56-1 at 15.) As discussed above, this was improper because 3 Davis did not need to submit an Informal Complaint. To the extent that Davis failed to 4 properly file a Formal Grievance because CO Milhoff did not process his submission, 5 Davis has met his burden of showing that this administrative remedy was effectively 6 unavailable to him. See Albino, 747 F.3d at 1172. 7 Finally, the parties dispute whether Davis properly submitted a Grievance Appeal. 8 (Docs. 48 ¶ 14; 56 at 8–9; 61 at 4–5.) The fact that Defendants have no record of Davis’s 9 Grievance Appeal is unsurprising because ADC staff unprocessed Davis’s initial Formal 10 Grievance. As Defendants note, “[Davis’s] grievance had been unprocessed, so there was 11 nothing for him to appeal.” (Doc. 61 at 4.) Davis has thus shown that the Grievance Appeal 12 process was also effectively unavailable to him. See Albino, 747 F.3d at 1172. 13 Viewing the evidence in the light most favorable to Davis, see Anderson, 477 U.S. 14 at 255, the Court concludes that Defendants fail to meet their burden of showing that 15 administrative remedies were available to Davis and that he did not exhaust them. See 16 Albino, 747 F.3d at 1172. The Court will therefore deny Defendants Eisel, Hannaford, and 17 Oliver’s Motion for Summary Judgment. 18 II. Davis’s Motion for Sanctions 19 Davis argues that Defendants violated Rule 11 of the Federal Rules of Civil 20 Procedure because they filed a “frivolous” Motion for Summary Judgment even though 21 Davis informed them that he exhausted his administrative remedies. (Doc. 71.) Defendants’ 22 argument that Davis failed to exhaust his administrative remedies is not frivolous because 23 it has some evidentiary support, including the fact that ADC found no record of Davis’s 24 processed grievances. See Fed. R. Civ. P. 11. Accordingly, the Court will deny Davis’s 25 Motion for Sanctions. 26 III. Conclusion 27 Accordingly, 28 IT IS ORDERED: 1 1. Defendants Eisel, Hannaford, and Oliver’s Motion for Summary 2| Judgment (Doc. 47) is denied. 3 2. Davis’s Motion for Sanctions (Doc. 71) is denied. 4 Dated this Ist day of March, 2023. 5 6

8 Honora Jennitey 73 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28