2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT JACKSON, Case No. 2:20-cv-01322-ART-MDC 5 Plaintiff, Order 6 v.
7 NEVADA DEPARTMENT OF CORRECTIONS, et al., 8 Defendants. 9 10 11 12 Before the Court are Defendants’ Motion for Judgment on the Pleadings (ECF 13 No. 39) and Motion for Summary Judgment in the Alternative (ECF No. 40)1 and 14 Plaintiff’s Motion to Stay Filing of Summary Judgment (ECF No. 52). In their 15 motions, Defendants assert that Plaintiff failed to exhaust his administrative 16 remedies before filing suit as required by the Prisoner Litigation Reform Act 17 (PLRA). For the reasons discussed below, this Court denies Defendants’ motions 18 and consequently denies Plaintiff’s motion as moot. 19 I. BACKGROUND 20 In his Second Amended Complaint (ECF No. 20), Plaintiff, an inmate at High 21 Desert State Prison (HDSP), alleges 1) retaliation in violation of the First 22 Amendment, and 2) confinement in segregation and loss of privileges, 23 employment, and quality of life in violation of the due process clause of the 24 Fourteenth Amendment. (ECF No. 20 at 2.) In its screening order, the Court 25 dismissed with prejudice the Fourteenth Amendment procedural due process 26 claim. (ECF No. 22 at 10.) The Court also dismissed without prejudice Defendants 27 1 Because ECF Nos. 39 and 40 are identical, the Court will refer to ECF No. 40 throughout this 28 order. 1 Williams, Wilson, Dugan, Dzurenda, and NDOC. (Id.) The Court allowed the First 2 Amendment retaliation claim to proceed against Defendants Nash, Natali, 3 Hunter, and Quinn. (Id.) 4 Plaintiff claims that he was retaliated against because he sued Defendants 5 Nash and another officer for violating his right to a nutritionally adequate 6 religious vegan diet. (Id. at 4.) He argues, among other things, that Defendants 7 Natali and Quinn “conducted a ‘targeted’ search of Plaintiff’s cell and confiscated 8 articles belonging to Plaintiff’s cellmate.” (Id.) As a result of the search, Plaintiff 9 and his cellmate were red-tagged (confined to their cell) for two days before the 10 prison restored their full level 1 privileges. (Id.) Plaintiff claims that he was 11 subsequently sent to segregation without notice of any charges, and then 12 provided late notice of the charges in violation of AR 707, before the prison 13 eventually dismissed the charges as unfounded and released him from 14 segregation. (Id.) Plaintiff claims that, because of these false charges, he lost ten 15 months of stat time and was deprived of the benefits of Level 1 status (ex: yard 7 16 days/week, 12-hour tier time, unrestricted phone calls to family, packages, full 17 commissary, etc.). (Id. at 5.) 18 II. LEGAL STANDARD 19 a. Judgment on the Pleadings 20 A party may move for judgment on the pleadings “[a]fter the pleadings are 21 closed-but early enough not to delay trial[.]” FED. R. CIV. P. 12(c). When 22 considering a motion for judgment on the pleadings, the court must accept as 23 true all material allegations in the complaint and view them in the light most 24 favorable to the plaintiff. NL Industries v. Kaplan, 792 F.2d 896, 898 (9th Cir. 25 1986). Judgment on the pleadings is only proper “when the moving party clearly 26 establishes on the face of the pleadings that no material issue of fact remains to 27 be resolved and that it is entitled to judgment as a matter of law.” Enron Oil 28 Trading & Transp. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997) 1 (citing George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996), 2 cert. denied, 519 U.S. 1081 (1997)). The Court should only dismiss the case if “it 3 appears beyond a doubt that plaintiff can prove no set of facts in support of his 4 claim which would entitle him to relief.” Sun Savings and Loan Ass’n v. Dierdorff, 5 825 F.2d 187, 191 (9th Cir. 1987). Consideration of matters outside of the 6 pleadings converts the motion for judgment on the pleadings into a motion for 7 summary judgment. FED. R. CIV. P. 12(d). 8 b. Summary Judgment 9 A court should grant summary judgment when there exists no genuine issue 10 as to any material fact and the moving party is entitled to judgment as a matter 11 of law. FED. R. CIV. P. 56(c). The moving party bears the initial burden of showing 12 the absence of any genuine issue of material fact, and the non-moving party must 13 establish that a genuine issue as to any material fact does indeed exist. Celotex 14 v. Catrett, 477 U.S. 317, 323-324 (1986). Material facts are facts that might affect 15 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 16 (1986). 17 c. Administrative Exhaustion 18 The PLRA provides that “[n]o action shall be brought with respect to prison 19 conditions under section 1983 of this title, or any other Federal law, by a prisoner 20 confined in any jail, prison, or other correctional facility until such administrative 21 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 22 “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. 23 Ngo, 548 U.S. 81, 93 (2006). [A] prisoner must complete the administrative review 24 process in accordance with the applicable procedural rules, including deadlines, 25 as a precondition to bringing suit in federal court[.]” Id. at 88. But, because the 26 PLRA requires exhaustion of those administrative remedies “as are available,” the 27 PLRA does not require exhaustion when circumstances render administrative 28 remedies “effectively unavailable.” See Sapp v. Kimbrell, 623 F.3d 813, 822-23 1 (9th Cir. 2010). In other words, an inmate must exhaust only those grievance 2 procedures “that are ‘capable of use’ to obtain ‘some relief for the action 3 complained of.’” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth v. 4 Churner, 532 U.S. 731, 738 (2001)). 5 In a non-exhaustive list, the Supreme Court has explained three ways where 6 a grievance procedure is unavailable: 1) when it operates as a “simple dead end— 7 with officers unable or consistently unwilling to provide any relief to aggrieved 8 inmates”; 2) when the administrative scheme is “so opaque that it becomes, 9 practically speaking, incapable of use”; and 3) when “prison administrators 10 thwart inmates from taking advantage of a grievance process through 11 machination, misrepresentation, or intimidation.” Id. In the third instance, a 12 grievance procedure is unavailable when “the correctional facility’s staff misled 13 the inmate as to the existence or rules of the grievance process,” misled the 14 inmate “into thinking that … he had done all he needed to initiate the grievance 15 process” or “play[s] hide-and-seek with administrative remedies.” Id. at fn.3 16 (citations omitted). “[R]emedies are not considered ‘available’ if, for example, 17 prison officials do not provide the required forms to the prisoner or if officials 18 threaten retaliation for filing a grievance.” Draper v. Rosario, 836 F.3d 1072, 1078 19 (9th Cir. 2016).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT JACKSON, Case No. 2:20-cv-01322-ART-MDC 5 Plaintiff, Order 6 v.
7 NEVADA DEPARTMENT OF CORRECTIONS, et al., 8 Defendants. 9 10 11 12 Before the Court are Defendants’ Motion for Judgment on the Pleadings (ECF 13 No. 39) and Motion for Summary Judgment in the Alternative (ECF No. 40)1 and 14 Plaintiff’s Motion to Stay Filing of Summary Judgment (ECF No. 52). In their 15 motions, Defendants assert that Plaintiff failed to exhaust his administrative 16 remedies before filing suit as required by the Prisoner Litigation Reform Act 17 (PLRA). For the reasons discussed below, this Court denies Defendants’ motions 18 and consequently denies Plaintiff’s motion as moot. 19 I. BACKGROUND 20 In his Second Amended Complaint (ECF No. 20), Plaintiff, an inmate at High 21 Desert State Prison (HDSP), alleges 1) retaliation in violation of the First 22 Amendment, and 2) confinement in segregation and loss of privileges, 23 employment, and quality of life in violation of the due process clause of the 24 Fourteenth Amendment. (ECF No. 20 at 2.) In its screening order, the Court 25 dismissed with prejudice the Fourteenth Amendment procedural due process 26 claim. (ECF No. 22 at 10.) The Court also dismissed without prejudice Defendants 27 1 Because ECF Nos. 39 and 40 are identical, the Court will refer to ECF No. 40 throughout this 28 order. 1 Williams, Wilson, Dugan, Dzurenda, and NDOC. (Id.) The Court allowed the First 2 Amendment retaliation claim to proceed against Defendants Nash, Natali, 3 Hunter, and Quinn. (Id.) 4 Plaintiff claims that he was retaliated against because he sued Defendants 5 Nash and another officer for violating his right to a nutritionally adequate 6 religious vegan diet. (Id. at 4.) He argues, among other things, that Defendants 7 Natali and Quinn “conducted a ‘targeted’ search of Plaintiff’s cell and confiscated 8 articles belonging to Plaintiff’s cellmate.” (Id.) As a result of the search, Plaintiff 9 and his cellmate were red-tagged (confined to their cell) for two days before the 10 prison restored their full level 1 privileges. (Id.) Plaintiff claims that he was 11 subsequently sent to segregation without notice of any charges, and then 12 provided late notice of the charges in violation of AR 707, before the prison 13 eventually dismissed the charges as unfounded and released him from 14 segregation. (Id.) Plaintiff claims that, because of these false charges, he lost ten 15 months of stat time and was deprived of the benefits of Level 1 status (ex: yard 7 16 days/week, 12-hour tier time, unrestricted phone calls to family, packages, full 17 commissary, etc.). (Id. at 5.) 18 II. LEGAL STANDARD 19 a. Judgment on the Pleadings 20 A party may move for judgment on the pleadings “[a]fter the pleadings are 21 closed-but early enough not to delay trial[.]” FED. R. CIV. P. 12(c). When 22 considering a motion for judgment on the pleadings, the court must accept as 23 true all material allegations in the complaint and view them in the light most 24 favorable to the plaintiff. NL Industries v. Kaplan, 792 F.2d 896, 898 (9th Cir. 25 1986). Judgment on the pleadings is only proper “when the moving party clearly 26 establishes on the face of the pleadings that no material issue of fact remains to 27 be resolved and that it is entitled to judgment as a matter of law.” Enron Oil 28 Trading & Transp. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997) 1 (citing George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996), 2 cert. denied, 519 U.S. 1081 (1997)). The Court should only dismiss the case if “it 3 appears beyond a doubt that plaintiff can prove no set of facts in support of his 4 claim which would entitle him to relief.” Sun Savings and Loan Ass’n v. Dierdorff, 5 825 F.2d 187, 191 (9th Cir. 1987). Consideration of matters outside of the 6 pleadings converts the motion for judgment on the pleadings into a motion for 7 summary judgment. FED. R. CIV. P. 12(d). 8 b. Summary Judgment 9 A court should grant summary judgment when there exists no genuine issue 10 as to any material fact and the moving party is entitled to judgment as a matter 11 of law. FED. R. CIV. P. 56(c). The moving party bears the initial burden of showing 12 the absence of any genuine issue of material fact, and the non-moving party must 13 establish that a genuine issue as to any material fact does indeed exist. Celotex 14 v. Catrett, 477 U.S. 317, 323-324 (1986). Material facts are facts that might affect 15 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 16 (1986). 17 c. Administrative Exhaustion 18 The PLRA provides that “[n]o action shall be brought with respect to prison 19 conditions under section 1983 of this title, or any other Federal law, by a prisoner 20 confined in any jail, prison, or other correctional facility until such administrative 21 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 22 “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. 23 Ngo, 548 U.S. 81, 93 (2006). [A] prisoner must complete the administrative review 24 process in accordance with the applicable procedural rules, including deadlines, 25 as a precondition to bringing suit in federal court[.]” Id. at 88. But, because the 26 PLRA requires exhaustion of those administrative remedies “as are available,” the 27 PLRA does not require exhaustion when circumstances render administrative 28 remedies “effectively unavailable.” See Sapp v. Kimbrell, 623 F.3d 813, 822-23 1 (9th Cir. 2010). In other words, an inmate must exhaust only those grievance 2 procedures “that are ‘capable of use’ to obtain ‘some relief for the action 3 complained of.’” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth v. 4 Churner, 532 U.S. 731, 738 (2001)). 5 In a non-exhaustive list, the Supreme Court has explained three ways where 6 a grievance procedure is unavailable: 1) when it operates as a “simple dead end— 7 with officers unable or consistently unwilling to provide any relief to aggrieved 8 inmates”; 2) when the administrative scheme is “so opaque that it becomes, 9 practically speaking, incapable of use”; and 3) when “prison administrators 10 thwart inmates from taking advantage of a grievance process through 11 machination, misrepresentation, or intimidation.” Id. In the third instance, a 12 grievance procedure is unavailable when “the correctional facility’s staff misled 13 the inmate as to the existence or rules of the grievance process,” misled the 14 inmate “into thinking that … he had done all he needed to initiate the grievance 15 process” or “play[s] hide-and-seek with administrative remedies.” Id. at fn.3 16 (citations omitted). “[R]emedies are not considered ‘available’ if, for example, 17 prison officials do not provide the required forms to the prisoner or if officials 18 threaten retaliation for filing a grievance.” Draper v. Rosario, 836 F.3d 1072, 1078 19 (9th Cir. 2016). 20 Failure to exhaust administrative remedies is a non-jurisdictional affirmative 21 defense that defendants must raise and prove. See Albino v. Baca, 747 F.3d 1162, 22 1166 (9th Cir. 2014); Jones v. Bock, 549 U.S. 199, 212-17 (2007). A “defendant 23 must first prove that there was an available administrative remedy and that the 24 prisoner did not exhaust that available remedy. … Then, the burden shifts to the 25 plaintiff, who must show that there is something particular in his case that made 26 the existing and generally available administrative remedies effectively 27 unavailable to him by showing that the local remedies were ineffective, 28 unobtainable, unduly prolonged, inadequate, or obviously futile. … The ultimate 1 burden of proof, however, remains with the defendants.” Williams v. Paramo, 775 2 F.3d 1182, 1191 (9th Cir. 2015). “If undisputed evidence viewed in the light most 3 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to 4 summary judgment under Rule 56. If material facts are disputed, summary 5 judgment should be denied, and the district judge rather than a jury should 6 determine the facts [in a preliminary proceeding].” Albino, 747 F.3d at 1166. 7 III. DISCUSSION 8 The issue is whether Plaintiff properly exhausted his retaliation claim by 9 filing an informal grievance, followed by first and second level grievances. 10 Defendants maintain that Plaintiff’s informal grievance was a disciplinary matter 11 that the prison rejected as premature, and that Plaintiff failed to refile it. Plaintiff 12 counters that he was grieving retaliation, not merely discipline, and properly 13 appealed the rejection of his informal grievance under the applicable regulation, 14 AR 740.03(6). Plaintiff further maintains that his disciplinary matter is exhausted 15 because once he got the relief requested—the charges were dismissed as 16 unfounded, he was released from segregation, and his custody status was 17 restored—there was nothing more to exhaust. 18 According to the regulations in effect at the time Plaintiff followed the 19 grievance process by initially filing an informal grievance, followed by first and 20 second level grievances. To exhaust, an inmate must follow procedures at the 21 informal, first, and second levels. See A.R. 740 (August 30, 2017). Although an 22 inmate may not appeal a claim that is “DISMISSED or not within the scope of 23 this Regulation,” A.R. 740.03(5) (August 30, 2017), there is no indication that 24 regulation was triggered here. Plaintiff instead argues that the applicable 25 regulation is AR 740.03(6), which provides: “An inmate who is dissatisfied with 26 the response to a grievance at any level may appeal the grievance to the next 27 level, within the substantive and procedural requirements outlined herein, unless 28 the action requested has already been Granted at a lower level.” A.R. 740.03(6) 1 (August 30, 2017). 2 Plaintiff’s informal grievance was rejected as premature, but not dismissed. 3 Plaintiff’s informal grievance alleged that the Defendants were retaliating against 4 him for filing another civil rights case by placing him in disciplinary segregation 5 without notice of the charges or a disciplinary hearing. (ECF No. 40-1 at 20-22.) 6 The grievance coordinator rejected the grievance as premature on a form that 7 stated: “After correcting the deficiencies listed below, you may re-submit your 8 grievance.” In the space below, the grievance coordinator wrote that Plaintiff 9 “received disciplinary action & are still pending disciplinary hearing.” (Id. at 19.) 10 This indicated that the grievance coordinator considered his informal grievance 11 to be grieving a pending disciplinary matter and was deficient because it was 12 premature. The form invited Plaintiff to resubmit. Because the form indicates that 13 the informal grievance was rejected, not dismissed, there was no bar to appeal 14 under A.R. 740.03(6). 15 Plaintiff’s first and second level grievances show that he was grieving 16 retaliation and “dissatisfied” with the grievance coordinator’s responses. In his 17 first level grievance, Plaintiff reiterated his concerns about retaliation, including 18 the lack of process in his placement, and he requested his release. (Id. at 18.) The 19 grievance coordinator told Plaintiff in the “correct deficiencies” section that he 20 needed to attach his informal grievance and use the first level complaint form 21 because he was grieving a disciplinary appeal. (Id. at 17.) Plaintiff then filed a 22 second level grievance arguing that his grievance “is [not] a disciplinary appeal. 23 This is about retaliation against [him] for [his] pending litigation.” (Id. at 15.) The 24 grievance coordinator stated that he had “rejected” Plaintiff’s grievance at the 25 informal level and that Plaintiff could not continue through the grievance process 26 without correcting the deficiencies. (Id. at 14.) 27 It appears Plaintiff properly exhausted his retaliation claim under AR 740, 28 or at a minimum there is a genuine disputed issue of material fact as to whether 1 he did. Plaintiff could appeal the rejection of an informal grievance if he was 2 “dissatisfied with the response.” AR 740.03(6). Plaintiff made clear that he was 3 grieving retaliation and disagreed with the grievance coordinator’s 4 characterization of his grievance as a disciplinary matter. On this record, Plaintiff 5 has the better argument on that he could appeal if he was dissatisfied with the 6 response to his grievance. 7 Though Defendant’s insist Plaintiff’s failure to cure and resubmit his 8 informal grievance amounts to a failure to exhaust his disciplinary matter, 9 Plaintiff argues that claim was fully exhausted because once he got the relief he 10 requested, there was nothing more to do. NDOC regulations state that “[i]f the 11 Grievance is ‘Granted’ at any level, the grievance process is considered complete 12 and the inmate’s administrative remedies exhausted…” A.R. 740.03(6)(C); see 13 also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust 14 ‘available’ remedies persists as long as some remedy remains ‘available.’”). 15 Plaintiff explains that he exhausted his administrative remedies because he 16 received his requested relief: the charges were dismissed as unfounded, he was 17 released from disciplinary segregation, and the prison restored his Level One 18 Custody Status. (ECF No. 45 at 9-10.) That relief completed his disciplinary 19 matter, so there was no other remedy available. 20 Thus, there is a genuine dispute of material fact as to whether this qualifies 21 as exhausting all available remedies related to any disciplinary matter. In 22 addition, Plaintiff’s informal grievance, first-level grievance, and second-level 23 grievance on retaliation addressed the discipline and related procedural 24 violations, and it is the retaliation claim that is now before this court. 25 Because there exist genuine issues of material fact regarding whether 26 Plaintiff exhausted, the Court need not address additional arguments raised by 27 Plaintiff and will deny Defendants’ Motion for Judgment on the Pleadings (ECF 28 No. 39) and Motion for Summary Judgment (ECF No. 40). 1 IV. CONCLUSION 2 It is hereby ordered that Defendants’ Motion for Judgment on the Pleadings 3 || (ECF No. 39) and Motion for Summary Judgment (ECF No. 40) are denied. 4 It is further ordered that Plaintiffs Motion to Stay Filing of Summary 5 || Judgment (ECF No. 52) is denied as moot. 6 7 DATED THIS 9t day of February 2024. 8 9 een Pee Vaated
1 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28