Derello 37292 v. Sanchez

Opinion

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Sanchez, et al., 13 Defendants.

14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in Arizona State 16 Prison Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. 17 (Doc. 1.) Defendant Harris moves for summary judgment, and Plaintiff opposes.1 (Docs. 18 38, 86, 109.)2 19 I. Background 20 In his Complaint, Plaintiff relevantly alleged as follows. On June 16, 2017, Plaintiff 21 was transferred to the custody of the Arizona Department of Corrections (ADC) and 22 brought four legal boxes, a trash bag full of legal papers, and his cane with him. (Doc. 7 23 at 3.) An officer confiscated the property and told Plaintiff that he would go through the 24 legal materials and return them to Plaintiff, but Sanchez told Plaintiff his property would 25 not be returned. (Id.) Sanchez then asked Plaintiff if he was still suing the prison and when 26

27 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 28 962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 44.) 2 Defendant did not file a reply in support of his Motion for Summary Judgment. 1 Plaintiff replied affirmatively, Sanchez stated that in that case, Plaintiff would not get any 2 property. (Id.) On June 19, 2017, Plaintiff submitted an inmate letter regarding his 3 property and cane to a correctional officer and Defendant Harris, the property supervisor. 4 (Id. at 4.) On June 26, Plaintiff told Defendant Harris that he filed a grievance regarding 5 the withholding of his legal property and Harris responded “I will show you what your 6 grievance filing mean[s] to me” and several weeks later, Harris sent Plaintiff a document 7 indicating that his property was being stored. (Id.) 8 After that, the more Plaintiff requested his legal property “the wors[e his] plight 9 became” and although Plaintiff informed Defendant Doe about the adverse treatment 10 against him, Doe did nothing about it. (Id. at 4-5.) When Plaintiff was moved to a new 11 unit, he discovered that his property had been inventoried by Defendant Lewis and his 12 purchased clothing and a lot of his legal material were missing and when he returned to his 13 original unit “four days later,” he went “through the same problems with Harris [regarding 14 his] legal material.” (Id. at 7.) On November 2, a property officer delivered a lot of 15 Plaintiff’s legal documents and told Plaintiff that Harris instructed the officer to give the 16 legal property to Plaintiff and that the officer would try to find Plaintiff’s clothes and the 17 rest of his legal work. (Id. at 5.) On November 7, Sanchez and another officer went to 18 Plaintiff’s cell and asked him if he was going to file another grievance against her regarding 19 his property, and when he arrived at the new unit, all the property he received from the 20 property officer was gone. (Id.) 21 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 22 First Amendment retaliation claims against Defendants Harris and Sanchez, a failure to 23 supervise claim against Defendant Doe, and an Eighth Amendment medical care claim 24 against Defendant Igwe. (Id. at 8-9.) The Court dismissed the remaining claims and 25 Defendants. (Id. at 10.) Thereafter, Defendant Doe was dismissed because Plaintiff did 26 not file a timely notice of substitution and Defendant Sanchez was dismissed for failure to 27 timely effect service of process. (Docs. 45 and 58.) 28 . . . . 1 Defendant Harris3 argues that he is entitled to summary judgment as to the First 2 Amendment retaliation claim asserted against him because Plaintiff failed to properly 3 exhaust his available administrative remedies. (Doc. 38.) 4 II. Legal Standards 5 A. Summary Judgment 6 A court must grant summary judgment “if the movant shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 8 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 9 movant bears the initial responsibility of presenting the basis for its motion and identifying 10 those portions of the record, together with affidavits, if any, that it believes demonstrate 11 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 12 If the movant fails to carry its initial burden of production, the nonmovant need not 13 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 14 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 15 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 16 contention is material, i.e., a fact that might affect the outcome of the suit under the 17 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 18 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 20 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 21 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 22 it must “come forward with specific facts showing that there is a genuine issue for trial.” 23 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 24 citation omitted); see Fed. R. Civ. P. 56(c)(1). 25

26 27 3 Defendants Sanchez and Doe also joined in the Motion for Summary Judgment, but because those Defendants were subsequently dismissed, the Court will not discuss 28 whether Plaintiff properly exhausted his available administrative remedies as to his claims against those Defendants. 1 At summary judgment, the judge’s function is not to weigh the evidence and 2 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 3 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 4 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 5 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 6 B. Exhaustion 7 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 8 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 9 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 10 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 11 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 12 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 13 (2002), regardless of the type of relief offered through the administrative process, Booth v. 14 Churner, 532 U.S. 731, 741 (2001). 15 The defendant bears the initial burden to show that there was an available 16 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 17 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 18 demonstrate that applicable relief remained available in the grievance process). Once that 19 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 20 fact, exhausted administrative remedies or “come forward with evidence showing that there 21 is something in his particular case that made the existing and generally available 22 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 23 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 24 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 25 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 26 If summary judgment is denied, disputed factual questions relevant to exhaustion 27 should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 28 exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted 1 administrative remedies, that administrative remedies were not available, or that the failure 2 to exhaust administrative remedies should be excused, the case proceeds to the merits. Id. 3 at 1171. 4 III. Facts 5 A. Grievance Procedure 6 Defendants’ Motion for Summary Judgment includes a copy of Department Order 7 (DO) 802, Inmate Grievance Procedure, which governs the ADC’s administrative 8 grievance process (hereinafter the “ Grievance Procedure” ). (Doc. 42-1 at 12-24.) 9 Pursuant to the Grievance Procedure, the first step in resolving a complaint is, within 10 ten workdays of the action which caused the complaint, for the inmate to discuss the issue 11 with staff in the area most responsible for the complaint or through submission of an 12 Informal Complaint Resolution Form. (Id. at 15, DO 802.20 §§ 2-1-2.2.) If an inmate is 13 unable to informally resolve the complaint, the inmate must submit the Informal Complaint 14 Resolution form (“ informal grievance” ) to the CO III in their unit within 10 workdays of 15 the action which caused the complaint; a response must be provided in 15 workdays. (Id. 16 at 16, DO 802.20 §§ 2.2-2.3.) If the inmate is dissatisfied with the response, the inmate 17 may submit a formal grievance. (Id. at § 2.4.) 18 For non-medical grievances, within five workdays of receiving the response from 19 the CO III to the informal grievance, the inmate must submit a formal grievance to the CO 20 IV Grievance Coordinator. (DO 802.30 § 3.2.) Within fifteen workdays, the Deputy 21 Warden must prepare a response to the grievance. (Id. at § 3.6) If dissatisfied with the 22 response, within five workdays of receipt of the response, the inmate may appeal to the 23 Warden. (Id. at 13-14, DO 802.04.) Within twenty workdays, the Warden must prepare a 24 response to the grievance. (Id.) If dissatisfied with the response, within five workdays of 25 receipt of the response, the inmate may appeal to the Director. (Id. at 17, DO 802.40 § 26 4.1.) The decision of the Director is final and the ADC considers the Director’ s decision 27 to constitute exhaustion of all remedies. (Id. at § 4.6.) 28 . . . . 1 B. Plaintiff’s Grievances 2 On October 23, 2017, Plaintiff submitted an Inmate Informal Complaint Resolution 3 stating that he was moved to a new unit on October 12, but four days later was moved back 4 and when he came back, a lot of his legal paperwork was missing and so were his clothes. 5 (Doc. 86 at 22.) In the Informal, Plaintiff provided a list of the clothes he was missing and 6 stated that he “believe[s] it was purposefully done” and “this is wrong.” (Id.) 7 On November 15, 2017, Plaintiff submitted an Inmate Grievance through the 8 emergency procedure stating that he was trying to speak to someone to no avail about his 9 “retaliation that is staff-related.” (Doc. 42-3 at 14.) B. Monaghan responded that based on 10 the description, Plaintiff’s issue did not meet the criteria for an emergency grievance, but 11 that the request was passed on to CO McCarthy via phone on November 15, 2017. (Doc. 12 42-3 at 14.) 13 On November 30, 2017, Plaintiff submitted an inmate grievance form stating that 14 the October 23 Informal had gone unanswered. (Doc. 86 at 21.) Most of the Informal is 15 illegible. (See id.) On December 8, 2017, CO III Brown noted that the Inmate Grievance 16 was “unprocessed” because on December 7, 2017, Brown had a “face to face with 17 [Plaintiff] to determine the nature of [his] grievance. [Plaintiff] stated that [he was] missing 18 legal boxes. [Plaintiff] made no informal attempt per DO 1002. However, [Brown] spoke 19 with the CDU staff and they . . . confirmed that [Plaintiff’s] legal boxes are there. [Plaintiff] 20 exchanged two of them last week.” (Doc. 86 at 21.) On December 13, 2017, Plaintiff 21 attempted to appeal the denial of the grievance; Plaintiff stated that Brown should have 22 considered the October 23 informal to be the informal resolution for the November 15, 23 grievance, but that appeal was denied because “there is no grievance to appeal.” (Doc. 42- 24 3 at 20.) 25 On December 17, 2017, Plaintiff attempted to submit an Inmate Grievance form, 26 which is largely illegible. (Doc. 42-3 at 24.) The Court can glean that Plaintiff complains 27 that “Sgt. Harris” would not give Plaintiff his legal material for the “past fo[u]r days.” (Id.) 28 In the grievance under “proposed resolution,” Plaintiff requests the return of his legal 1 documents and states that he had been trying to obtain his legal boxes from “Sgt. Harris” 2 since January 2017. (Id.) CO III Brown returned the grievance as “unprocessed” because 3 “no informal attempt and out of time frames to submit an informal resolution per DO 802.” 4 IV. Discussion 5 Defendant Harris argues that he is entitled to summary judgment because Plaintiff 6 did not timely submit a standard grievance appeal to the Director or Director’s level 7 regarding the allegations against Harris. 8 In Response, Plaintiff asserts that CO III Brown made the grievance process 9 unavailable to him because she refused to log Plaintiff’s grievances. (Doc. 86 at 5.) 10 Plaintiff also asserts that he filed grievances against Harris while at SMU, but CO III Riefer 11 filed the grievance as medical when it was not a medical grievance. (Id. at 7-8.) Plaintiff 12 asserts that as a result of Brown’s and Riefer’s actions, the grievance process was 13 effectively unavailable to him. 14 Although most of Plaintiff’s grievance documents are illegible, ADC officials 15 provided responses to the grievances based on the illegible contents; Defendant has made 16 no attempt to provide the Court with legible copies or to provide transcripts of the contents 17 of the grievances. 18 Although Defendant has met his burden by showing that there is an administrative 19 grievance process that was available to Plaintiff, Plaintiff argues that the grievance process 20 was effectively unavailable because, in part, CO III Brown refused to process his 21 grievances. Indeed, although it is difficult to read, CO III Brown returned a grievance as 22 “unprocessed” that complained about Defendant Harris’s conduct over the “past fo[u]r 23 days” and incorrectly stated that the grievance was untimely and indicated that because it 24 was “untimely,” Plaintiff would not be able to grieve the issue. As such, Plaintiff has met 25 his burden of showing that the grievance process was effectively unavailable to him 26 because CO III Brown refused to process a timely grievance regarding Defendant Harris 27 withholding Plaintiff’s legal boxes. Moreover, the grievance documents show that CO III 28 Brown incorrectly stated that Plaintiff did not submit an informal grievance regarding his 1 | legal boxes when she refused to process his November 30, 2017 Inmate Grievance, but 2| Plaintiff's October 23, 2017 informal grievance does state that his legal documents were missing. Defendant has not provided any explanation as to the discrepancies in these 4 responses, did not file a reply in support of the Motion for Summary Judgment, and does not provide legible documents to the Court or explain how CO III Brown could have properly responded substantively to grievances that were illegible. Accordingly, Defendant Harris has not met his ultimate burden of demonstrating that the grievance 8 | process was available to Plaintiff and Harris’s Motion for Summary Judgment will be 9| denied. 10| ITIS ORDERED: 11 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 38) and Plaintiff's Motion requesting computer use (Doc. 141). 14 (2) Defendants’ Motion for Summary Judgment (Doc. 38) is denied. 15 (3) Plaintiff's Motion requesting computer use (Doc. 141) is denied as moot 16 | because the Court ordered that Plaintiff be provided a word processor to respond to Igwe’s 17 | Motion for Summary Judgment.* 18 Dated this 6th day of February, 2020. 19

Michael T. Liburdi 22 United States District Judge 23 24 25 26 27

4 See Doc. 140.