Gardner v. Boyd

Opinion

EASTERN DISTRICT OF WASHINGTON

NO. 4:19-CV-5238-TOR Plaintiff, ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO KENTON BOYD, et al., EXHAUST ADMINISTRATIVE REMEDIES Defendants.

BEFORE THE COURT is Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 29). This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein, the completed briefing, and is fully informed. For the reasons discussed below, Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 29) is GRANTED. This case concerns Plaintiff’s grievances regarding prison procedures at the

Washington State Penitentiary (“WSP”). See ECF No. 11. Following a review of Plaintiff’s First Amended Complaint, the Court dismissed every claim except Plaintiff’s Eighth Amendment claim. See ECF No. 16. Defendants now seek

summary judgment for Plaintiff’s failure to exhaust administrative remedies. ECF No. 29. Except where noted, the following facts are not in dispute. A. Prison Grievance Procedure The Washington State Department of Corrections (“DOC”) implemented the

Offender Grievance Program in 1984 to process grievances relating to incarceration, which is managed in accordance with DOC’s grievance policy and the Offender Grievance Program Manual. ECF No. 30 at 1-2, ¶¶ 1-2. The

Offender Grievance Program is widely used: over 20,000 grievances are filed per year system-wide. ECF No. 30 at 4, ¶ 6. Prisoners are advised of the DOC grievance procedure upon arrival at the WSP. ECF No. 30 at 2, ¶ 3. The policy, manual, and grievance forms are

available in the prison’s law library. ECF No. 30 at 2-3, ¶ 3. Prisoners may file a grievance complaint by submitting a sealed complaint in a locked grievance box. ECF No. 30 at 3, ¶ 3. The grievance manual requires that the grievance include the

prisoner’s signature, unless the prisoner does not know how to write, to ensure security and validation. ECF No. 30 at 4, ¶ 7; ECF No. 30 at 5, ¶ 8. Prisoners must also file within twenty working days from the date of the alleged incident

unless there is a valid reason for delay. ECF No. 30 at 4, ¶ 5. Once received, prison grievance coordinators process complaints based on four levels of review. ECF No. 30 at 3, ¶ 4. On Level 0, the prison grievance

coordinator pursues informal resolution of written complaints. Id. The grievance coordinator may return the complaint for rewriting, request additional information, or accept the complaint as a formal grievance. Id. Notably, if the complaint lacks a signature with the prisoner’s committed name, the complaint will be returned.

ECF No. 30 at 4, ¶ 7. On Level I, the local grievance coordinator reviews grievances regarding policy, procedure, or other prisoners. ECF No. 30 at 3, ¶ 4. On Level II, the prison superintendent investigates appeals from Level I and

reviews grievances regarding staff conduct. Id. On Level III, DOC administrators review appeals from Level II. Id. Prisoners may not appeal a decision made at Level III. ECF No. 30 at 4, ¶ 5. B. Plaintiff’s Claims

Plaintiff is a prison inmate at the WSP. ECF No. 29 at 1; ECF No. 34 at 1-2. On September 4, 2019, the WSP grievance office received Plaintiff’s complaint that alleged staff were not announcing mainline during meal times in violation of

WSP policy, causing him to miss three meals. ECF No. 30 at 5, ¶ 10. Plaintiff alleges that this occurred because DOC staff did not like Plaintiff’s refusal to go by his committed last name and wanted to give him “shit.” ECF No. 34 at 2. Plaintiff

signed the complaint in part with his middle name, “Keand’e RCW 62A.1-308 under protest.” Id. Plaintiff’s committed name is Kier Keand’e Gardner. See ECF No. 11. The grievance coordinator returned the complaint to Plaintiff on the

grounds that Plaintiff failed to properly sign the form. Id. at 6. Defendants claim that Plaintiff did not appeal the request that he sign his committed name nor did Plaintiff file a new grievance with the requested signature. Id. Plaintiff relies on his own declaration to claim that he submitted an appeal that

was never filed nor acknowledged by DOC. ECF No. 34 at 7. Plaintiff concedes that no copies or records exist of this appeal. Id.

A. Summary Judgment Standard The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling

on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the

absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.

For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. Further, a material fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The Court views the facts, and all rational

inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted “against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Courts should construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules

strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “This rule exempts pro se inmates from strict compliance with the summary judgment rules, but it does not exempt them from all compliance.” Soto v. Unknown Sweetman,

882 F.3d 865, 872 (9th Cir. 2018) (emphasis in original). B. Failure to Exhaust Administrative Remedies 1. The Prison Litigation Reform Act

Under the Prison Litigation Reform Act (“PLRA”) of 1995, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available, are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a mandatory prerequisite to filing suit in federal court. Jones v. Bock, 549 U.S. 199, 211 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006). “[T]o properly exhaust administrative remedies

prisoners must ‘complete the administrative review process in accordance with applicable procedural rules’” defined by the specific prison grievance process in question. Jones, 549 U.S. at 218 (quoting Woodford, 548 U.S. at 88).

In the Ninth Circuit, a motion for summary judgment is generally appropriate for raising the plaintiff’s failure to exhaust administrative remedies. Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir. 2014). The burden is on the defendant to prove that there was an available administrative remedy that the

plaintiff failed to exhaust. Id. at 1172. The burden then shifts to the prisoner to produce evidence showing “that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable

to him.” Id. Unavailable remedies include those that: (1) “operate[] as a simple dead end—with officers unable or consistently unwilling to provide any relief to

aggrieved inmates,” (2) are opaque and incapable of use, or (3) “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60

(2016); Fuqua v. Ryan, 890 F.3d 838, 850 (9th Cir. 2018). The ultimate burden of proof remains with the defendant. Albino, 747 F.3d at 1172. 2. Exhaustion under WSP’s Grievance Process Defendants have demonstrated that an available administrative remedy

exists through the WSP Offender Grievance Program, which consists of four levels of review. See ECF No. 30 at 1-5, ¶¶ 1-9. Plaintiff initiated the grievance process when he submitted a complaint. ECF No. 30 at 5, ¶ 10. The grievance coordinator

returned the complaint for failure to sign his committed name with instruction to appeal or file a new grievance with committed signature. ECF No. 30 at 5-6, ¶ 10. Defendants assert that Plaintiff failed to exhaust his remedies because he did not appeal or file a new grievance with committed signature. ECF No. 29 at 6.

Plaintiff argues that this administrative remedy was effectively unavailable to him due to “interference, improper screening and misrepresentation” on the grounds (1) that DOC policy does not require a committed signature and DOC staff

have previously accepted his middle name signature, and (2) that he did file an appeal of the rejection. ECF No. 34 at 6-7. Plaintiff does not dispute that he failed to file a new grievance with his committed signature. See ECF No. 34.

First, Plaintiff disputes the required committed signature, arguing that the manual only specifies a “signature.” See ECF No. 34 at 5. However, the requirement of a committed signature on a grievance form is proper pursuant to the

WSP policy which Plaintiff had access to in the prison library. See ECF No. 30 at 2-3, ¶ 3; ECF No. 31-1 at 15 (Manual requires signature); ECF No. 31-2 at 4 (“An individual … must use the name under which s/he was committed to the Department for [a]ny written or verbal communication with employees, contract

staff, and volunteers.”). The grievance coordinator also alerted Plaintiff to this policy. ECF No. 35 at 10. Moreover, DOC’s past acceptance of Plaintiff’s preferred signature is not dispositive. The rejection of Plaintiff’s grievance did not

create a dead end, opaque terms incapable of use, or thwart the process through machination, misrepresentation, or intimidation. Thus, the administrative remedy was not rendered unavailable; the choice not to sign with the committed name was of Plaintiff’s own volition.

Second, Plaintiff’s dispute that he did file an appeal relies only on his own declaration. ECF No. 34 at 7. Indeed, Plaintiff acknowledges that no copies or records exist. Id. Even construed liberally in favor of Plaintiff, Plaintiff’s bare

assertion, without more, does not create a genuine issue of material fact in dispute. Therefore, summary judgment is appropriate.

3. Defendants’ request to issue dismissal with prejudice Defendants argue that Plaintiff’s case should be dismissed with prejudice. ECF No. 29 at 3-5. If a prisoner fails to exhaust available administrative remedies,

the proper disposition is generally dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). Defendants’ use of cases outside of the Ninth Circuit

is not persuasive. In Williams v. Comstock, prejudice is not discussed in a case where a prisoner waited nearly two years to file his grievance that required filing within fourteen days of the date of incident. 425 F.3d 175, 177 (2d Cir. 2005). In

Graves v. Norris, the court expressly did not reach the issue of whether dismissal without prejudice was improper when administrative remedies were exhausted. 218 F.3d 884, 885–86 (8th Cir. 2000). Therefore, the Court declines to adopt the approach urged by Defendants.

} ACCORDINGLY, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 29) is GRANTED. 2. This matter is DISMISSED without prejudice. The District Court Executive is directed to enter this Order and Judgment accordingly, furnish copies to the parties, and CLOSE the file. DATED August 28, 2020.

mS GS THOMAS Ck ae United States District Judge

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE