1 SKC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 21-02150-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Core Civic, et al., 13 Defendants.
14 15 Plaintiff Gerald Vaughn Gwen, who is currently confined in the Red Rock 16 Correctional Center (RRCC) in Eloy, Arizona, brought this pro se civil rights action 17 pursuant to 42 U.S.C. § 1983. Defendants Correctional Officers (COs) Green, Fimbres1, 18 and Macias move for summary judgment. (Doc. 52.) Plaintiff was informed of his rights 19 and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) 20 (en banc) (Doc. 54), and he opposes the Motion. (Doc. 59.) Defendants filed a Reply. 21 (Doc. 63.) 22 The Court will grant the Motion for Summary Judgment and dismiss this action. 23 . . . . 24 . . . . 25 26 1 Plaintiff named Defendant CO F. Leon, not CO Fimbres, in his First Amended 27 Complaint, but in their Answer, Defendants stated that “Defendant Leon is Defendant Fimbres” (Doc. 14 at 1, n.1), and in subsequent filings, Plaintiff and Defendants have used 28 the name Fimbres, not Leon. (See, e.g., Docs. 21, 25, 27, 29, 35, 40.) For ease of reference, the Court will refer to Defendant Leon as Defendant Fimbres. 1 I. Background 2 On screening Plaintiff’s three-count First Amended Complaint under 28 U.S.C. 3 § 1915A(a), the Court determined Plaintiff stated an Eighth Amendment medical care 4 claim in Count Two against Defendants Green, Fimbres, and Macias for allegedly 5 intentionally discarding Plaintiff’s medications and extra pillow authorized by the medical 6 department during Plaintiff’s move to a different prison unit. (Doc. 9 at 13.) The Court 7 directed these Defendants to answer the claim and dismissed the remaining claims and 8 Defendants. (Id. at 17−18.) 9 Defendants move for summary judgment based on failure to exhaust administrative 10 remedies and on the merits. 11 II. Summary Judgment Standard 12 A court must grant summary judgment “if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 14 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 15 movant bears the initial responsibility of presenting the basis for its motion and identifying 16 those portions of the record, together with affidavits, if any, that it believes demonstrate 17 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 18 If the movant fails to carry its initial burden of production, the nonmovant need not 19 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 20 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 21 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 22 contention is material, i.e., a fact that might affect the outcome of the suit under the 23 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 24 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 26 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 27 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 28 it must “come forward with specific facts showing that there is a genuine issue for trial.” 1 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 2 citation omitted); see Fed. R. Civ. P. 56(c)(1). 3 At summary judgment, the judge’s function is not to weigh the evidence and 4 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 5 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 6 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 7 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 8 III. Exhaustion 9 A. Legal Standard 10 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 11 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 12 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 13 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 14 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 15 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 16 (2002), regardless of the type of relief offered through the administrative process, Booth v. 17 Churner, 532 U.S. 731, 741 (2001). 18 The defendant bears the initial burden to show that there was an available 19 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 20 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 21 demonstrate that applicable relief remained available in the grievance process). Once that 22 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 23 fact, exhausted administrative remedies or “come forward with evidence showing that there 24 is something in his particular case that made the existing and generally available 25 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 26 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 27 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 28 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 1 B. Facts2 2 1. RRCC’s Grievance Procedures 3 The Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) 4 Department Order (DO) 802, Inmate Grievance Procedure, sets forth the grievance 5 procedures prisoners must follow at RRCC. (Doc.
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1 SKC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 21-02150-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Core Civic, et al., 13 Defendants.
14 15 Plaintiff Gerald Vaughn Gwen, who is currently confined in the Red Rock 16 Correctional Center (RRCC) in Eloy, Arizona, brought this pro se civil rights action 17 pursuant to 42 U.S.C. § 1983. Defendants Correctional Officers (COs) Green, Fimbres1, 18 and Macias move for summary judgment. (Doc. 52.) Plaintiff was informed of his rights 19 and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) 20 (en banc) (Doc. 54), and he opposes the Motion. (Doc. 59.) Defendants filed a Reply. 21 (Doc. 63.) 22 The Court will grant the Motion for Summary Judgment and dismiss this action. 23 . . . . 24 . . . . 25 26 1 Plaintiff named Defendant CO F. Leon, not CO Fimbres, in his First Amended 27 Complaint, but in their Answer, Defendants stated that “Defendant Leon is Defendant Fimbres” (Doc. 14 at 1, n.1), and in subsequent filings, Plaintiff and Defendants have used 28 the name Fimbres, not Leon. (See, e.g., Docs. 21, 25, 27, 29, 35, 40.) For ease of reference, the Court will refer to Defendant Leon as Defendant Fimbres. 1 I. Background 2 On screening Plaintiff’s three-count First Amended Complaint under 28 U.S.C. 3 § 1915A(a), the Court determined Plaintiff stated an Eighth Amendment medical care 4 claim in Count Two against Defendants Green, Fimbres, and Macias for allegedly 5 intentionally discarding Plaintiff’s medications and extra pillow authorized by the medical 6 department during Plaintiff’s move to a different prison unit. (Doc. 9 at 13.) The Court 7 directed these Defendants to answer the claim and dismissed the remaining claims and 8 Defendants. (Id. at 17−18.) 9 Defendants move for summary judgment based on failure to exhaust administrative 10 remedies and on the merits. 11 II. Summary Judgment Standard 12 A court must grant summary judgment “if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 14 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 15 movant bears the initial responsibility of presenting the basis for its motion and identifying 16 those portions of the record, together with affidavits, if any, that it believes demonstrate 17 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 18 If the movant fails to carry its initial burden of production, the nonmovant need not 19 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 20 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 21 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 22 contention is material, i.e., a fact that might affect the outcome of the suit under the 23 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 24 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 26 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 27 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 28 it must “come forward with specific facts showing that there is a genuine issue for trial.” 1 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 2 citation omitted); see Fed. R. Civ. P. 56(c)(1). 3 At summary judgment, the judge’s function is not to weigh the evidence and 4 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 5 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 6 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 7 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 8 III. Exhaustion 9 A. Legal Standard 10 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 11 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 12 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 13 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 14 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 15 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 16 (2002), regardless of the type of relief offered through the administrative process, Booth v. 17 Churner, 532 U.S. 731, 741 (2001). 18 The defendant bears the initial burden to show that there was an available 19 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 20 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 21 demonstrate that applicable relief remained available in the grievance process). Once that 22 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 23 fact, exhausted administrative remedies or “come forward with evidence showing that there 24 is something in his particular case that made the existing and generally available 25 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 26 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 27 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 28 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 1 B. Facts2 2 1. RRCC’s Grievance Procedures 3 The Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) 4 Department Order (DO) 802, Inmate Grievance Procedure, sets forth the grievance 5 procedures prisoners must follow at RRCC. (Doc. 53, DSOF ¶ 65.) Upon arrival at RRCC, 6 prisoners are provided a copy of the Arizona Inmate Handbook (“Handbook”), which 7 directs them to follow the grievance procedures set forth in DO 802. (Id. ¶¶ 64−66.) 8 Copies of the Handbook and DO 802 are available to prisoners in the RRCC library. (Id. 9 ¶ 68.) Plaintiff received a copy of the Handbook and verbal instruction on the grievance 10 procedures during the general prisoner orientation conducted by RRCC staff, and the 11 grievance process was available to him at all relevant times at RRCC. (Id. ¶¶ 67, 73.) 12 DO 802.01, Section 1.1 states that “[t]he Inmate Grievance Procedure is designed 13 to address inmate complaints related to any aspect of institutional life or condition of 14 15 2 The facts are based on Defendants’ Statement of Facts (DSOF) and supporting 16 evidence. (Doc. 53, Doc. 53-1−6.) Plaintiff failed to comply with the Court’s Rand Order and Local Rule of Civil Procedure 56.1(b) for responding to a motion for summary 17 judgment and did not file a separate statement of facts, setting forth for each paragraph in 18 Defendant’s Statement of Facts a correspondingly numbered paragraph “indicating whether [he] disputes the statement of fact set forth in that paragraph and a reference to the 19 specific admissible portion of the record supporting [his] position.” (See Doc. 54 at 2; 20 LRCiv. 56.1(b).) In his Response and separately filed declaration, Plaintiff also failed to clearly articulate or cite to any evidence in response to Defendants’ Motion. (Docs. 59, 21 60.) Instead, he merely reiterated purported discovery issues he raised in multiple prior Motions that the Court already addressed, frequently by providing detailed instructions and 22 citations to the relevant rules and procedures for filing such motions. Rather than re- 23 address the same issues here, the Court refers Plaintiff to its past Orders. (See Docs. 30, 34, 41, 47, 57, 65, 67, 69.) Considering Plaintiff’s pro se status, the Court will, where 24 relevant, include facts from Plaintiff’s verified First Amended Complaint. See Jones v. 25 Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff’s verified pleadings must be considered as evidence in opposition to summary judgment); Schroeder 26 v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an 27 affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence). 28 1 confinement that directly and personally affects the inmate grievant, including . . . the 2 actions of staff.” (Id. ¶ 69.) 3 Under DO 802, prisoners must first attempt to resolve their issues informally, either 4 by discussing them with staff or by submitting an Inmate Informal Complaint Resolution. 5 The informal complaint must be submitted within 10 workdays of the of the date of the 6 action that caused the complaint, and a CO III must provide a response within 15 days of 7 receiving the informal complaint. (Id. ¶¶ 75−76.) 8 If the prisoner is dissatisfied with the response to his informal complaint, he may 9 file a formal grievance within 5 days of that response. (Id. ¶ 77.) The formal grievance is 10 assigned a grievance number and logged in the facility Grievance Log, and a copy of it is 11 maintained in the grievance file. (Id. ¶ 79.) Within 15 days of receipt of the formal 12 grievance, the Deputy Warden must issue a response. (Id. ¶ 80.) If the prisoner is 13 dissatisfied with the Deputy Warden’s response, he may appeal the decision by submitting 14 a Grievance Appeal to the Director within 5 workdays of receiving the response. (Id. ¶ 81.) 15 The Director’s response is final and ends the administrative remedy process. (Id. ¶ 82.) 16 At any stage of this process, unless the prisoner is notified of an extension of the 17 time for a response, the expiration of the time for a response entitles the prisoner to move 18 to the next stage of the process, even without a response. (Id. ¶ 78.) 19 2. Plaintiff’s Grievance History 20 RRCC Grievance Coordinator T. Hansen has access to all RRCC grievance records. 21 (Doc. 53-5, Ex. 5, Hansen Decl. ¶ 32.) According to Hansen, Plaintiff submitted an Inmate 22 Informal Grievance Complaint on October 26, 2021, complaining he was missing personal 23 property and medications since being moved to detention because he was not permitted to 24 pack and transport his own belongings. (DSOF ¶ 83.) Plaintiff did not mention an extra 25 pillow or pillow wedge as part of his missing belongings. (Id.) 26 On November 17, 2021, Hansen submitted a notice to Plaintiff that the timeframe 27 for a response had been extended, with a response due from the CO on November 19, 2021, 28 and a response due to Plaintiff due by December 3, 2021. (Id. ¶ 84.) Plaintiff and CO III 1 Bissell signed the notice. (Id.) 2 On December 1, 2021, CO III Bissell responded to Plaintiff’s informal complaint, 3 stating, 4 After a thorough investigation and review of your property file, I did not find that staff have been negligent with your property, 5 per DO 909 your property was inventoried by 2 staff members 6 and delivered to detention. Upon receipt of your property another staff member initialed in the receiving column to verify 7 that your items were accounted for in detention. By signing 8 the property inventory form, you are certifying that the inventory is a true and accurate accounting of your notes from 9 either you or the staff members [claiming] that there is missing 10 property. A review of your property file does reflect that you have made many purchases, however, proof of purchase does 11 is [sic] not proof of retention. It is possible you either gave, 12 traded or sold the items purchased. I am denying your request for replacement or reimbursement. If you do not agree with 13 my response you may continue in the 802 process-inmate 14 grievance procedures. 15 (Id. ¶ 85.) Plaintiff had 5 workdays, meaning until December 8, 2021, to submit an Inmate 16 Grievance on this matter. (Id. ¶ 86.) Even if he did not receive CO III Bissell’s response, 17 Plaintiff would have had 5 workdays from December 3, 2021—the date the extended 18 timeframe for a response expired—meaning by December 10, 2021, to proceed to the next 19 level of review by filing an Inmate Grievance. (Id.)3 20 On December 29, 2021, Plaintiff submitted an Inmate Grievance, stating in part, 21 I placed an inmate first informal regarding lost or destroyed 22 property while I was transferred to CDU. First sent to CO III Sanchez, then transferred to CO III Bissel Fox Unit. I 23 approved an extension for Bissel to file a response on
24 25 3 Hansen claims Plaintiff would have had until December 8, 2021 to move to the next level, but this is inconsistent with Defendants’ evidence showing the extended 26 deadline for a response to Plaintiff’s informal complaint was December 3, 2021. The Court 27 infers in Plaintiff’s favor that Plaintiff had 5 business days from December 3, 2021 to proceed to the next level, and taking judicial notice that December 4 and 5, 2021, were a 28 Saturday and Sunday and did not count in the number of days, Plaintiff had until December 10, 2021 to file a Formal Grievance. November 17, 2021 and have yet to receive a response to the 1 original complaint. 2 (Id. ¶ 87.) Upon receipt of this Inmate Grievance, Hansen verified with CO III Bissell that 3 Bissell had returned his informal complaint response to Plaintiff on December 1, 2021. (Id. 4 ¶ 88.) On January 5, 2022, Hansen responded to Plaintiff’s Inmate Grievance, informing 5 Plaintiff of what Bissell had told her and stating that, even if Plaintiff had not received 6 Bissell’s response by the extended due date, he could have proceeded to the next stage of 7 the grievance process as if he had received a response, but he had not timely done so. (Id.) 8 Hansen wrote that she considered the matter resolved. (Id.) 9 On January 17, 2022, Plaintiff submitted an Inmate Grievance Appeal, complaining 10 that Hansen’s response was inadequate because Plaintiff clearly stated he had not received 11 a response to his Inmate Informal Complaint, and there was no evidence CO III Bissell had 12 conducted a thorough investigation. (Id. ¶ 89.) Plaintiff requested a proper and thorough 13 investigation of his property issue. (Id.) 14 On February 22, 2022, Appeals Officer M. Stephen responded to Plaintiff’s 15 Grievance Appeal on behalf of Director Shinn, stating that Plaintiff’s Formal Grievance 16 had been unprocessed due to it being received more than 5 days from when Plaintiff 17 received the informal complaint response, and Plaintiff had not provided any justification 18 for why his Formal Grievance was untimely. (Id. ¶ 90.) M. Stephen wrote that “[n]o 19 further action is warranted in this matter.” (Id.) 20 3. Discussion 21 Defendants have made an initial showing that Plaintiff had administrative remedies 22 available to him to grieve Defendants’ alleged confiscation of his medications and 23 medically prescribed pillow during transfer, and he failed to properly exhaust those 24 remedies. Although Plaintiff filed an Informal Complaint about the loss of these items on 25 October 26, 2021, the evidence shows CO III Bissell responded to this Informal Complaint 26 within the extended timeframe on December 1, 2021, and Plaintiff did not timely proceed 27 to the next level of the grievance process. Taking as true that Plaintiff never received 28 1 Bissell’s December 1, 2021 response, Plaintiff still had administrative remedies available 2 to him because he could have submitted a Formal Grievance, even without a response, 3 within 5 workdays of the day a response was due, in this case by December 10, 2021. 4 Instead, Plaintiff did not file a Formal Grievance until December 29, 2021, twenty-one 5 days after the latest date he was required to do so, and Hansen unprocessed that Formal 6 Grievance because it was untimely. 7 Because Defendants have made an initial showing that Plaintiff had administrative 8 remedies available to him, and he failed to exhaust those remedies according to the prison 9 regulations for doing so, the burden shifts to Plaintiff to show that he either did exhaust or 10 that “something in his particular case . . . made the existing and generally available 11 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. As 12 previously noted, Plaintiff filed a Response to Defendants’ Motion for Summary Judgment, 13 but he did not file a controverting statement of facts; nor did he include any facts about 14 exhaustion in his Response or declaration that would create a genuine issue of material fact 15 as to Defendants’ showing. The form complaint Plaintiff used to file his First Amended 16 Complaint also only required Plaintiff to check boxes stating whether he did or did not 17 exhaust his administrative remedies. Although Plaintiff checked that he had exhausted his 18 administrative remedies (Doc. 8 at 9), conclusory checkmarks are not enough to create a 19 genuine issue of material fact as to Defendants’ showing that Plaintiff’s attempt to do so 20 was untimely. On this record, Plaintiff failed to exhaust his administrative remedies, and 21 the Court will grant Defendants’ Motion for Summary Judgment on this basis. See 22 Woodford, 548 U.S. at 92 (prisoner must complete the administrative review process in 23 accordance with the applicable rules before filing suit). 24 Because the Court will dismiss Defendants and this action based on failure to 25 exhaust, the Court need not discuss Defendants’ additional arguments that Plaintiff’s 26 Eighth Amendment medical care claim against them fails on the merits. 27 . . . . 28 . . . . 1| ITIS ORDERED: 2 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 3) Motion for Summary Judgment (Doc. 52). 4 (2) Defendants’ Motion for Summary Judgment (Doc. 52) is granted, and 5 | Defendants and this action are dismissed without prejudice for failure to exhaust 6 | administrative remedies. The Clerk of Court must terminate this action and enter judgment 7 | accordingly. 8 Dated this 5th day of May, 2023. 9 10 a 11 2 _ James A. Teil Org Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28