Demian Dominguez v. Dr. Joseph Benson, et al.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 DEMIAN DOMINGUEZ, Case No. 3:23-CV-00474-CLB

5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 6 v. [ECF No. 62] 7 DR. JOSEPH BENSON, et al.,

8 Defendants. 9 This case involves a pro se civil rights action filed by Plaintiff Demian Dominguez 10 (“Dominguez”) against Defendants Joseph Benson (“Benson”), John Keast (“Keast”), 11 Megan Sullivan (“Sullivan”), and Jessica Rambur (“Rambur”) (collectively referred to as 12 “Defendants”). Pending before the Court is Defendants’ motion for summary judgment. 13 (ECF No. 62.) Because Dominguez failed to exhaust his administrative remedies, the 14 Court grants Defendants’ motion. 15 I. BACKGROUND 16 A. Procedural History 17 Dominguez is an inmate in the custody of the Nevada Department of Corrections 18 (“NDOC”) who was formerly housed at Northern Nevada Correctional Center (“NNCC”). 19 (ECF No. 9 at 1.) Dominguez filed a pro se civil rights complaint alleging Defendants were 20 deliberately indifferent to his severe abdominal pain. (ECF No. 10.) According to 21 Dominguez, between 2019 and 2023 he suffered severe abdominal pain and was not 22 properly treated by Defendants, who are all medical professionals. (Id.) Dominguez 23 concedes in his complaint he did receive treatment during this time period, but argues it 24 was insufficient based on his level of pain and how bad his symptoms were. (Id.) 25 Furthermore, Dominguez alleges Defendants rejected requests for additional treatment 26 and testing on multiple occasions. (Id.) The Court screened Dominguez’s complaint 27 pursuant to 28 U.S.C. § 1915(A) and, based on the above allegations, permitted 1 Dominguez to proceed on a single claim Defendants were deliberately indifferent to his 2 serious medical need in violation of the Eighth Amendment. (ECF No. 9 at 4-6.) 3 Dominguez continued to suffer from abdominal pain after he filed suit and received 4 additional testing which revealed the source of Dominguez’s pain was sludge build up in 5 his gallbladder. (ECF No. 62 at 7.) Doctors removed Dominguez’s gallbladder which 6 resolved his abdominal pain. (ECF No. 73 at 11.) Dominguez now further alleges that had 7 Defendants not been deliberately indifferent when he first started having abdominal pain, 8 and had they run the proper tests, they would have discovered the problem with his 9 gallbladder and saved him years of suffering. (Id. at 2-11.) 10 B. Factual Summary1 11 Because the Court finds Defendants are entitled to summary judgment based on 12 exhaustion, the Court’s factual discussion will focus on Dominguez’s grievance history. 13 1. Grievance # 2006-31-48902 14 On February 17, 2023, Dominguez filed an emergency grievance stating he had 15 been “in severe pain for the last several days” and the medication medical gave him was 16 not helping. (ECF No. 62-9 at 2.) Dominguez stated the pain was getting worse and 17 “keeping [him] up 23 hours a day.” (Id.) Prison staff responded the same day and told 18 Dominguez he had not shown there was an emergency, and to submit a kite to medical 19 about his pain. (Id.; see also ECF No. 62-8 at 7.) 20 2. Grievance 2006-31-48820 21 On February 15, 2023, Dominguez filed an Informal Grievance stating he had 22 submitted a kite to medical on October 22, 2019, (see ECF No. 64-1 at 4), regarding his 23 abdominal pain, and that at present he was still experiencing pain. (ECF No. 62-7 at 2.) 24 Rambur rejected Dominguez’s grievance because it was untimely, noting grievances 25 related to medical claims had to be filed within six months. (Id. at 3.) Dominguez filed a 26 First Level Grievance arguing his grievance was in fact timely because although the pain 27 1 began in 2019, it was an ongoing problem he currently suffered from. (Id. at 4.) 2 Dominguez also stated he would file a lawsuit in federal court if his grievance was rejected 3 again. (Id. at 5.) Sullivan rejected Dominguez’s grievance because he did not attach the 4 proper paperwork. (Id. at 6.) Sullivan stated Dominguez could resubmit his First Level 5 Grievance so long as he attached his previously rejected Informal Grievance, Improper 6 Grievance Memo, and related kites. (Id.) 7 Dominguez resubmitted his First Level Grievance, (id. at 7), and Sullivan rejected 8 it again, this time noting it was untimely because Dominguez was attempting to grieve a 9 medical issue from 2019, (id. at 9). Because this was Dominguez’s third rejection, Sullivan 10 checked the “Abuse of Inmate Grievance Procedure” box and told Dominguez not to 11 resubmit. (Id.) Dominguez filed a Second Level Grievance stating there had been no 12 resolution to his years of pain and prison staff were violating his Eighth Amendment rights. 13 (Id. at 11.) Keast rejected Dominguez’s Second Level Grievance because his Informal 14 Grievance had never been accepted, noting that regulations prohibited an inmate from 15 appealing a rejected grievance to the next level. (Id. at 12; see also ECF No. 62-8 at 8- 16 9.) 17 II. LEGAL STANDARD 18 “The court shall grant summary judgment if the movant shows that there is no 19 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 20 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 21 substantive law applicable to the claim or claims determines which facts are material. 22 Coles v. Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 23 U.S. 242, 248 (1986)). Only disputes over facts that address the main legal question of 24 the suit can preclude summary judgment, and factual disputes that are irrelevant are not 25 material. Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” 26 only where a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 27 248. 1 record, including but not limited to depositions, documents, and declarations, and then 2 (2) show “that the materials cited do not establish the absence or presence of a genuine 3 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 4 Fed. R. Civ. P. 56(c)(1)(B). “A party may object that the material cited to support or dispute 5 a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. 6 P. 56(c)(2). Conclusory statements, speculative opinions, pleading allegations, or other 7 assertions uncorroborated by facts are insufficient to establish the absence or presence 8 of a genuine dispute. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 9 2007); Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019). 10 The moving party bears the initial burden of demonstrating an absence of a 11 genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the 12 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 13 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 14 at 984. However, if the moving party does not bear the burden of proof at trial, the moving 15 party may meet their initial burden by demonstrating either: (1) there is an absence of 16 evidence to support an essential element of the nonmoving party’s claim or claims; or (2) 17 submitting admissible evidence that establishes the record forecloses the possibility of a 18 reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco 19 Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz 20 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and any 21 inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. 22 Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its 23 burden for summary judgment, the nonmoving party is not required to provide evidentiary 24 materials to oppose the motion, and the court will deny summary judgment. Celotex, 477 25 U.S. at 322-23. 26 Where the moving party has met its burden, however, the burden shifts to the 27 nonmoving party to establish that a genuine issue of material fact actually exists. 1 nonmoving party must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping 2 Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal 3 quotation omitted). In other words, the nonmoving party may not simply rely upon 4 the allegations or denials of its pleadings; rather, they must tender evidence of specific 5 facts in the form of affidavits and/or admissible discovery material in support of their 6 contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 7 586 n. 11. This burden is “not a light one,” and requires the nonmoving party to “show 8 more than the mere existence of a scintilla of evidence.” Id. (quoting In re Oracle Corp. 9 Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)). The nonmoving party “must come forth 10 with evidence from which a jury could reasonably render a verdict in the nonmoving 11 party’s favor.” Pac. Gulf Shipping Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 12 627 F.3d at 387). Mere assertions and “metaphysical doubt as to the material facts” will 13 not defeat a properly supported and meritorious summary judgment motion. Matsushita, 14 475 U.S. at 586. 15 III. DISCUSSION 16 Before addressing the merits of the Parties’ arguments regarding exhaustion, the 17 Court will first discuss Administrative Regulation (“AR”) 740, the NDOC regulation 18 governing grievances. 19 A. Grievance Procedure 20 AR 740 governs the grievance process at NDOC institutions. To properly exhaust 21 their administrative remedies an inmate must grieve through all three levels: (1) Informal; 22 (2) First Level; and (3) Second Level. (ECF No. 62-4 at 11-16); AR 740.08-.10. First, the 23 inmate must file an Informal Grievance within six months “if the issue involves personal 24 property damage or loss, personal injury, medical claims, or any other tort claims, 25 including civil rights claims.” (ECF No. 62-4 at 11); AR 740.08(4)(A). An inmate’s failure 26 to submit an Informal Grievance within this period “shall constitute abandonment of the 27 offender’s grievance at this and all subsequent levels.” (ECF No. 62-4 at 12); AR 1 at 13); AR 740.08(12). An inmate who is dissatisfied with the response to their Informal 2 Grievance may appeal to the First Level within five calendar days. (ECF No. 62-4 at 13); 3 AR 740.08(12)(A). 4 This next grievance level is called a “First Level Grievance.” (ECF No. 62-4 at 13); 5 AR 740.09. A First Level Grievance “should be reviewed, investigated, and responded to 6 by the Warden at the institution where the incident . . . occurred, even if the Warden is 7 the subject of the grievance.” (ECF No. 62-4 at 13); AR 740.09(1). However, “[t]he 8 Warden may utilize any staff in the development of a grievance response.” (ECF No. 62- 9 4 at 13); AR 740.09(1)(A). The time limit for a response is 45 days. (ECF No. 62-4 at 14); 10 AR 740.09(6). Within five days of receiving a dissatisfactory response to the First Level 11 Grievance, the inmate must then appeal to the next level, called the “Second Level 12 Grievance.” (ECF No. 62-4 at 14-15); AR 740.09(6)(A). 13 Officials must respond to a Second Level Grievance within 60 days and specify 14 “the decision and the reasons for the decision.” (ECF No. 62-4 at 15-16); AR 740.10(3), 15 (5). Once the inmate receives a decision there are no further steps and the inmate is 16 considered to have exhausted their available administrative remedies. (ECF No. 62-4 at 17 13-16); AR 740.08-10. If prison staff fail to respond within the prescribed 60-day period, 18 the inmate must submit an Offender Request Form. (ECF No. 62-4 at 15); AR 740.10(4). 19 The official then has an additional 60 days to either respond to the Offender Request 20 Form or the underlying grievance itself. (ECF No. 62-4 at 15-16); AR 740.10(4). If the 21 official fails to do so “the offender will have exhausted the administrative remedy process.” 22 (ECF No. 62-4 at 15-16); AR 740.10(4). The official may also inform the inmate more time 23 is needed in response to the Offender Request Form. (ECF No. 62-4 at 16); AR 740.10(4). 24 In such cases the official must provide the inmate with “a timeframe in which a response 25 will be provided.” (ECF No. 62-4 at 16); AR 740.10(4). If the official fails to meet that 26 timeline “the grievance process will be considered exhausted.” (ECF No. 62-4 at 16); AR 27 740.10(4). Once a grievance is exhausted the inmate may then pursue civil litigation in 1 Inmates may also file an Emergency Grievance for “an issue or situation that is 2 life-threatening for the offender or a safety and security risk for the institution.” (ECF No. 3 62-4 at 10); AR 740.07(1). Officials are required to review Emergency Grievances within 4 24 hours of receipt and respond as soon as practicable under the circumstances. (ECF 5 No. 62-4 at 10); AR 740.07(2), (5)-(6). If an Emergency Grievance is deemed to not be 6 an emergency, “the offender may file a grievance appeal commencing at the Informal 7 Level.” (ECF No. 62-4 at 10); AR 740.07(7). 8 Inmates are required to follow proper procedure throughout the grievance process, 9 and failure to do so may cause the inmate’s grievance to be rejected. (ECF No. 62-4 at 10 4-5); AR 740.03(1). For example, a grievance which “does not factually demonstrate a 11 loss or harm and does not state the action or remedy that will satisfy the claim” is deficient 12 and will be returned “with an explanation as to what was missing for the grievance to be 13 processed.” (ECF No. 62-4 at 4); AR 740.03(1)(A). In such cases, the inmate must correct 14 the issues identified and resubmit their grievance at the same level. (ECF No. 62-4 at 6); 15 AR 740.03(6). 16 Additionally, an official’s failure to respond within the prescribed timeframes at 17 each level “is not an automatic finding for the offender.” (ECF No. 62-4 at 6); AR 18 740.03(9). Rather, when a response is overdue the inmate can either “proceed to the next 19 grievance level” or “wait[] for the response before initiating the appeal.” (ECF No. 62-4 at 20 6); AR 740.03(9)(B), (C). If the inmate chooses to wait for a response the official’s delay 21 “does not count against the offender’s timeframe for an appeal.” (ECF No. 62-4 at 6); AR 22 740.03(9)(C). Thus, even if an inmate’s Informal or First Level grievance is not responded 23 to within the prescribed time limits, the inmate is still required to proceed through the 24 grievance process outlined above to fully exhaust their claim. 25 Lastly, if an inmate is transferred while a grievance is pending the aforementioned 26 “[t]imeframes do not apply.” (ECF No. 62-4 at 9); AR 740.06(2). Nevertheless, officials 27 are still required to adhere to the timeframes “as closely as possible” and must process 1 2. Dominguez’s Exhaustion 2 Defendants argue, inter alia, they are entitled to summary judgment because 3 Dominguez did not properly exhaust his administrative remedies prior to filing suit. (ECF 4 No. 62 at 19-25.) Dominguez argues in response he could not properly grieve because 5 he “is a Spanish speaking person, who is not adept at the laws and rules governing the 6 exhaustion requirements.” (ECF No. 73 at 11.) The Court agrees with Defendants. 7 Under the PLRA, “[n]o action shall be brought with respect to prison conditions 8 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, 9 prison, or other correctional facility until such administrative remedies as are available are 10 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 11 516, 524 (2002). The requirement’s underlying premise is to “reduce the quantity and 12 improve the quality of prisoner suits” by affording prison officials the “time and opportunity 13 to address complaints internally before allowing the initiation of a federal case. In some 14 instances, corrective action taken in response to an inmate’s grievance might improve 15 prison administration and satisfy the inmate, thereby obviating the need for litigation.” Id. 16 at 524-25. 17 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 18 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison 19 holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 20 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands 21 compliance with an agency’s deadlines and other critical procedural rules because no 22 adjudicative system can function effectively without imposing some orderly structure on 23 the course of its proceedings.” Woodford, 548 U.S. at 90-91. 24 However, an inmate need not exhaust when circumstances render administrative 25 remedies “effectively unavailable.” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). 26 In Ross v. Blake, the Supreme Court provided a non-exhaustive list of circumstances 27 where administrative remedies were not capable of use: (1) where the procedure 1 provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so 2 opaque that it becomes, practically speaking, incapable of use” because “no ordinary 3 prisoner can discern or navigate it”; and (3) when prison administrators “thwart inmates 4 from taking advantage of a grievance process through machination, misrepresentation, 5 or intimidation.” 578 U.S. 632, 642-44. 6 The Ninth Circuit has also “recognized specific circumstances that render 7 administrative remedies unavailable.” Fordley v. Lizarraga, 18 F.4th 344, 351-52 (9th Cir. 8 2021). For example, when prison officials fail to provide inmates with the proper forms in 9 a timely manner the administrative process is effectively unavailable. Id. (citing Marella v. 10 Terhune, 568 F.3d 1024, 1026 (9th Cir. 2009) (per curiam)). Nor are administrative 11 remedies available when prison officials improperly “screen out” an inmate’s grievance 12 thus preventing them from “pursu[ing] the necessary sequence of appeals.” Sapp v. 13 Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). Lastly, if prison officials fail to respond to an 14 inmate’s grievance in the time prescribed by the relevant regulation it “may demonstrate 15 that no administrative process is in fact available.” Brown v. Valoff, 422 F.3d 926, 943 16 n.18 (9th Cir. 2005); see also Andres v. Marshall, 867 F.3d 1076, 1078-79 (9th Cir. 2017) 17 (collecting cases from other circuits holding that administrative remedies are effectively 18 unavailable when prison officials fail to respond to an inmate’s grievance in the prescribed 19 time period). 20 In the Ninth Circuit, a motion for summary judgment will typically be the appropriate 21 vehicle to determine whether an inmate has properly exhausted their administrative 22 remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence 23 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant 24 is entitled to summary judgment under Rule 56. If material facts are disputed, summary 25 judgment should be denied, and the district judge rather than a jury should determine the 26 facts.” Id. at 1166. 27 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 1 remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172. If the defendant makes 2 such a showing, the burden shifts to the inmate to “show that there is something particular 3 in his case that made the existing and generally available administrative remedies 4 effectively unavailable to him by ‘showing that the local remedies were ineffective, 5 unobtainable, unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 6 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 7 Here, Dominguez filed two grievances related to his abdominal pain, neither of 8 which he properly exhausted. First, Grievance # 2006-31-48902 was rejected because 9 officials determined Dominguez’s pain did not constitute an emergency. (ECF No. 62-8 10 at 7.) If Dominguez disagreed with that determination he was required to file an Informal 11 Grievance. (See ECF No. 62-4 at 10); AR 740.07(7). However, Dominguez’s grievance 12 record demonstrates he did not pursue an Informal Grievance and instead abandoned 13 his grievance. (See ECF No. 62-8.) Dominguez therefore failed to properly exhaust 14 Grievance #2006-31-48902. 15 Second, Grievance # 2006-31-48820 was untimely and improperly grieved. AR 16 740.08(4)(A) states if an inmate fails to submit their grievance within six months it “shall 17 constitute abandonment of the offender’s grievance at this and all subsequent levels.” 18 See also NRS 209.243 (noting a prisoner’s claim “must be filed within 6 months after the 19 date of the alleged loss, damage or injury”). Here, Dominguez explicitly stated he was 20 submitting his grievance in relation to a kite he submitted to medical on October 22, 2019, 21 roughly three and a half years beforehand. (ECF No. 62-7 at 2.) Dominguez’s grievance 22 was therefore untimely. 23 Beyond being untimely, however, Dominguez’s grievance was improperly 24 appealed to the Second Level. AR 740.03(6) states an inmate may not proceed to the 25 next level if their grievance is deemed not accepted and returned to them. (ECF No. 62- 26 4 at 6.) Indeed, the form given to Dominguez rejecting his Informal Grievance clearly 27 stated he “may NOT proceed to the next level” because his grievance was untimely. (ECF 1 yet he did so anyway. Thus, Dominguez cannot avail himself of the fact he proceeded to 2 the Second Level because his doing so was improper, and the PLRA requires proper 3 exhaustion. See Woodford, 548 U.S. at 94. 4 Dominguez argues that because his primary language is Spanish, he did not fully 5 understand the grievance procedure and believed “he had done the grievance process 6 correctly.” (ECF No. 73.) The Court is unpersuaded. Although courts have suggested an 7 inmate’s “lack of familiarity with English may excuse a failure to exhaust,” that is only the 8 case when the inmate “is given insufficient assistance by prison officials” to properly use 9 the grievance process. Lang Vo Tran v. Ill. Dep’t of Corrs., 2011 WL 816630, at *8 (S.D. 10 Ill. Mar. 1, 2011); see also Bazaldua v. Williams, 2022 WL 744479, at *4 (D. Nev. Mar. 11 10, 2022) (adopting reasoning in Lang Vo Tran); Beltran-Ojeda v. Doe, 2013 WL 12 6059242, at *3 (D. Ariz. 2013) (noting if prison staff refused to accept grievances written 13 in Spanish or provide an interpreter it could “constitute an exception to the exhaustion 14 requirement”). This is because by failing to provide proper assistance prison officials have 15 rendered the grievance process effectively unavailable. See Sapp, 623 F.3d at 822 16 (noting inmates are not required to exhaust administrative remedies when circumstances 17 render them “effectively unavailable”). 18 Here, there is no evidence indicating Dominguez sought assistance from prison 19 officials and was denied. If anything, the record undercuts Dominguez’s argument 20 because the record establishes he properly grieved other issues in English. (See ECF 21 No. 62-8.) Moreover, throughout this litigation Dominguez has been able to draft and 22 respond to motions and Court orders in English without issue. Indeed, Dominguez’s 23 opposition to Defendants’ motion for summary judgment is written in English and 24 substantively responds to each of Defendants’ arguments. (ECF No. 73.) Thus, even if 25 Dominguez is not fluent in English, he has access to adequate resources to help him 26 interpret and draft documents. Even if he did not, however, Dominguez has produced no 27 evidence indicating he sought assistance from prison officials and was denied. the grievance process was effectively unavailable, and concludes Defendants are entitled 2| to summary judgment on the basis Dominguez failed to properly exhaust his 3 administrative remedies.@ IV. CONCLUSION 5 The Court notes that the Parties made several arguments and cited to several 6 | cases not discussed above. The Court has reviewed these arguments and cases and 7 | determines they do not warrant discussion as they do not affect the outcome of the issues 8 | before the Court. 9 IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment, (ECF No. 62), is GRANTED. 11 IT IS FURTHER ORDERED that the Clerk CLOSE this case and ENTER 12 | JUDGMENT accordingly. 43 DATED: March 23, 2026 ‘

14 45 UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 2 Because the Court's finding that Dominguez failed to properly exhaust his administrative remedies is dispositive, the Court need not address the other arguments raised by the Parties. 49