1 ASH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fabian Hernandez, et al., No. CV 16-03699-PHX-DGC (JZB) 10 Plaintiffs, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.
14 15 16 Pending before the Court is a Motion for Partial Summary Judgment (Doc. 81) filed 17 by the State Defendants.1 18 I. Background 19 On June 9, 2016, Plaintiffs Fabian Hernandez, Joseph Artiaga, David J. Daniels, 20 Jesus Garcia, Paul Harris, Nathaniel Hooks, Vincente Longoria, Brandon Wilson, 21 Christopher Henderson, and Guy Snider filed, through counsel, a civil rights Complaint in 22 Maricopa County Superior Court. On September 29, 2016, Plaintiffs filed a First Amended 23 Complaint that added the State of Arizona as a Defendant. On October 25, 2016, the State 24 of Arizona removed the matter to this Court. Defendants were served thereafter.
25 26 27 28 1 The “State Defendants” are Defendants Andrews, Barnett, Bossom, Bucholz, Burtsfield, Caruso, Cooper, Freeland, Gilboy, Graham, Gullion, Johnson, Llamas, Masterson, Porto, Sanchez, Snare, Webster, Wieden, and Winfrey. 1 The State Defendants have filed this Motion for Partial Summary Judgment, seeking 2 dismissal of Plaintiffs Harris, Henderson, and Longoria for failure to exhaust their 3 administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. 4 § 1997e et seq. (Doc. 81.) Plaintiffs have responded in opposition. (Doc. 96.) The State 5 Defendants have replied (Doc. 101), conceding that the PLRA did not apply to Plaintiffs 6 Henderson and Longoria because they had been released from prison at the time the 7 Complaint was filed, but arguing that summary judgment against Plaintiff Harris remained 8 appropriate. 9 II. Legal Standards 10 A. Summary Judgment 11 A court must grant summary judgment “if the movant shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 13 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 14 movant bears the initial responsibility of presenting the basis for its motion and identifying 15 those portions of the record, together with affidavits, if any, that it believes demonstrate 16 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 17 If the movant fails to carry its initial burden of production, the nonmovant need not 18 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 19 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 20 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 21 contention is material, i.e., a fact that might affect the outcome of the suit under the 22 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 23 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 24 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 25 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 26 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 27 it must “come forward with specific facts showing that there is a genuine issue for trial.” 28 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 1 citation omitted); see Fed. R. Civ. P. 56(c)(1). 2 At summary judgment, the judge’s function is not to weigh the evidence and 3 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 4 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 5 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 6 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 7 B. Exhaustion 8 Under the PLRA, a prisoner must exhaust “available” administrative remedies 9 before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 10 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). 11 The prisoner must complete the administrative review process in accordance with the 12 applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required for 13 all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type 14 of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 15 (2001). 16 The defendant bears the initial burden to show that there was an available 17 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 18 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 19 demonstrate that applicable relief remained available in the grievance process). Once that 20 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 21 fact, exhausted administrative remedies or “come forward with evidence showing that there 22 is something in his particular case that made the existing and generally available 23 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 24 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 25 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 26 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 27 If the defendants move for summary judgment for failure to exhaust and the 28 evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies, 1 it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on 2 the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary 3 judgment on issue of exhaustion, but because he would have succeeded had he made such 4 a motion, sua sponte grant of summary judgment was appropriate). 5 III. Facts 6 A. ADC’s Grievance Process 7 Arizona Department of Corrections (ADC) Department Order (DO) 802 sets forth 8 the ADC’s grievance process. (Doc.
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1 ASH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fabian Hernandez, et al., No. CV 16-03699-PHX-DGC (JZB) 10 Plaintiffs, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.
14 15 16 Pending before the Court is a Motion for Partial Summary Judgment (Doc. 81) filed 17 by the State Defendants.1 18 I. Background 19 On June 9, 2016, Plaintiffs Fabian Hernandez, Joseph Artiaga, David J. Daniels, 20 Jesus Garcia, Paul Harris, Nathaniel Hooks, Vincente Longoria, Brandon Wilson, 21 Christopher Henderson, and Guy Snider filed, through counsel, a civil rights Complaint in 22 Maricopa County Superior Court. On September 29, 2016, Plaintiffs filed a First Amended 23 Complaint that added the State of Arizona as a Defendant. On October 25, 2016, the State 24 of Arizona removed the matter to this Court. Defendants were served thereafter.
25 26 27 28 1 The “State Defendants” are Defendants Andrews, Barnett, Bossom, Bucholz, Burtsfield, Caruso, Cooper, Freeland, Gilboy, Graham, Gullion, Johnson, Llamas, Masterson, Porto, Sanchez, Snare, Webster, Wieden, and Winfrey. 1 The State Defendants have filed this Motion for Partial Summary Judgment, seeking 2 dismissal of Plaintiffs Harris, Henderson, and Longoria for failure to exhaust their 3 administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. 4 § 1997e et seq. (Doc. 81.) Plaintiffs have responded in opposition. (Doc. 96.) The State 5 Defendants have replied (Doc. 101), conceding that the PLRA did not apply to Plaintiffs 6 Henderson and Longoria because they had been released from prison at the time the 7 Complaint was filed, but arguing that summary judgment against Plaintiff Harris remained 8 appropriate. 9 II. Legal Standards 10 A. Summary Judgment 11 A court must grant summary judgment “if the movant shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 13 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 14 movant bears the initial responsibility of presenting the basis for its motion and identifying 15 those portions of the record, together with affidavits, if any, that it believes demonstrate 16 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 17 If the movant fails to carry its initial burden of production, the nonmovant need not 18 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 19 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 20 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 21 contention is material, i.e., a fact that might affect the outcome of the suit under the 22 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 23 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 24 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 25 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 26 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 27 it must “come forward with specific facts showing that there is a genuine issue for trial.” 28 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 1 citation omitted); see Fed. R. Civ. P. 56(c)(1). 2 At summary judgment, the judge’s function is not to weigh the evidence and 3 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 4 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 5 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 6 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 7 B. Exhaustion 8 Under the PLRA, a prisoner must exhaust “available” administrative remedies 9 before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 10 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). 11 The prisoner must complete the administrative review process in accordance with the 12 applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required for 13 all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type 14 of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 15 (2001). 16 The defendant bears the initial burden to show that there was an available 17 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 18 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 19 demonstrate that applicable relief remained available in the grievance process). Once that 20 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 21 fact, exhausted administrative remedies or “come forward with evidence showing that there 22 is something in his particular case that made the existing and generally available 23 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 24 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 25 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 26 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 27 If the defendants move for summary judgment for failure to exhaust and the 28 evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies, 1 it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on 2 the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary 3 judgment on issue of exhaustion, but because he would have succeeded had he made such 4 a motion, sua sponte grant of summary judgment was appropriate). 5 III. Facts 6 A. ADC’s Grievance Process 7 Arizona Department of Corrections (ADC) Department Order (DO) 802 sets forth 8 the ADC’s grievance process. (Doc. 82-3.) DO 802 “requires the inmate to first attempt 9 to resolve any ‘complaints through informal means including, but not limited to, discussion 10 with staff in the area most responsible for the complaint or through the submission of an 11 Inmate Informal Complaint Resolution . . . .” (Doc. 82-11 at 4.) If the inmate “is unable 12 to resolve a complaint through informal means, the inmate may submit an Informal 13 Complaint on an Inmate Informal Complaint Resolution form to the Correctional Officer 14 (CO) III in the inmate’s prison unit . . . .” (Id.) If the “inmate’s complaint cannot be 15 resolved informally, the inmate may submit a formal inmate grievance to the unit CO IV 16 Grievance Coordinator . . . .” (Id.) “Within fifteen workdays following the receipt of the 17 formal inmate grievance, the Deputy Warden issues a written response to the inmate. (Id.) 18 If the inmate “receives an unfavorable response from the Deputy Warden, the inmate may 19 appeal the response to the Warden . . . .” (Id.) “The Warden must respond to this appeal 20 within twenty workdays.” (Id.) If the inmate receives an unfavorable response from the 21 Warden, he “may appeal the Warden’s decision to the Director of ADC.” (Id.) “The 22 Director’s response is final, and constitutes an exhaustion of all remedies within the ADC 23 . . . .” (Id. at 5) 24 B. Harris’s Grievance 25 Harris alleges that he was assaulted by prison staff on June 9, 2014. (Doc. 1-1 at 26 70). On June 13, 2014, Harris submitted an Inmate Informal Complaint Resolution 27 describing the assault. (Doc. 97 at 5; Doc. 97-1 at 1). Harris received an Inmate Letter 28 Response from Deputy Warden Freeland dated June 25, 2014. (Id.; id.). On July 3, 2014, 1 Harris submitted an inmate grievance, which was signed by the grievance coordinator on 2 July 7, 2014. (Id.; id at 2). Harris received a supplemental response dated August 21, 3 2014. (Id.; id.). On August 27, 2014, Harris submitted an Inmate Grievance Appeal, which 4 was marked as received by the Warden’s Office on September 3, 2014. (Id.; id.). Harris 5 received a Decision of Appeal dated September 6, 2014. (Id; id). 6 Defendants allege that Harris then failed to submit a Director’s-level appeal. 7 (Doc. 82 at 2). In response, Harris has submitted a signed Declaration stating that after he 8 received the September 6, 2014 Decision of Appeal, he “took the paperwork to appeal to 9 the Director.” (Doc. 97-1 at 2). Harris “completed the paperwork to appeal to the 10 Director,” and “put the paperwork to appeal to the Director in the office of my COIII in the 11 Cook Unit, Building 1.” (Id.). Harris “slid the paperwork under the door,” but “did not 12 receive a response from the appeal.” (Id.). Plaintiff further states that his housing location 13 was moved on July 23, 2016, and that his property was taken from him. (Id.). When his 14 property was returned, his “legal papers were missing. [He] received some paperwork 15 back, but not the paperwork related to this case.” (Id.). 16 IV. Discussion 17 Defendants have met their initial burden of showing that there was an administrative 18 remedy available to Harris, and that Harris did not complete this process with respect to 19 his claims. Accordingly, the burden shifts to Harris to either show that he exhausted the 20 available remedies or that the remedy was effectively unavailable to him. Albino, 747 F.3d 21 at 1172. 22 Plaintiff has done so. Plaintiff has submitted a signed Declaration indicating that 23 he would testify, under oath, that he submitted the Director’s-level appeal by sliding the 24 paperwork under the door of his COIII’s office. Defendants argue that Harris “has no 25 documented evidence that he submitted an appeal to the director.” (Doc. 101 at 2.) But 26 documented evidence is not required when evaluating whether an issue of material fact 27 exists. Plaintiff’s Harris’s Declaration is sufficient to establish an issue of material fact as 28 to whether he exhausted his administrative remedies. That the Declaration might be, as 1 Defendants put it, “self-serving,” is irrelevant. United States v. Shumway, 199 F.3d 1093, 2 1104 (9th Cir. 1999) (“That an affidavit is self-serving bears on its credibility, not on its 3 cognizability for purposes of establishing a genuine issue of material fact.”). As 4 mentioned, at summary judgment, the Court does not make credibility determinations; it 5 must take the nonmovant’s facts as true. See Soremekun, 509 F.3d at 984. Plaintiff’s 6 declaration is signed under penalty of perjury, and he has personal knowledge to testify 7 about whether he filed a grievance appeal to the Director concerning the June 9, 2014 8 incident. (Doc. 97-1 at 12 ¶¶ 12-13.) 9 Defendants’ further objection that Harris’ Declaration is contradictory because he 10 has been able to produce the records of his lower-level grievances, despite stating in his 11 Declaration that the “paperwork related to this case” was not returned to him, is not 12 sufficient to warrant summary judgment. As an initial matter, Defendants have not 13 indicated where or when Harris has supposedly produced these records, and the Court is 14 unable to locate them. The records that have been provided with the briefing on this Motion 15 have all come from Defendants themselves. Further, even assuming that Harris has, 16 somehow, produced some of his grievance records does not mean that he is in possession 17 of all of the records. Similarly, that Defendants have records that other Plaintiffs filed 18 Director-level appeals does not mean that Harris did not. Simply put, the “absence of a 19 record for Plaintiff Harris” does not demonstrate that he did not file an appeal to the 20 director. 21 IT IS ORDERED: 22 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 23 Motion for Summary Judgment (Doc. 81). 24 (2) Defendants’ Motion for Summary Judgment (Doc. 81) is denied.
25 26 27 28 1 (3) Within 20 days of the date of this Order, Defendants must file a Notice 2| indicating whether they request that the Court set an evidentiary hearing as to exhaustion | or whether they wish to withdraw the request to dismiss the case as to Harris on exhaustion grounds. 5 Dated this 6th day of August, 2019. 6 7 . Saul. Cornpllt 9 David Campbell 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28