Jason Mahe v. Joe Barlett

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2023
• Docket: 21-17141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASON A. MAHE, No. 21-17141

Plaintiff-Appellant, D.C. No. 3:20-cv-00261-CLB

v. MEMORANDUM* JOE BARLETT; et al.,

Defendants-Appellees,

and

STATE OF NEVADA; et al.,

Defendants.

Appeal from the United States District Court for the District of Nevada Carla Baldwin, Magistrate Judge, Presiding

Submitted June 5, 2023** San Francisco, California

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Jason Mahe appeals pro se from the district court’s summary judgment for

Nevada Department of Corrections, Northern Nevada Correctional Center Medical

Department, state of Nevada, and individual prison official Defendants

(Defendants). We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s summary judgment and the court’s determination that a prisoner

failed to exhaust administrative remedies. Toguchi v. Chung, 391 F.3d 1051, 1056

(9th Cir. 2004); Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We affirm.

Mahe, an inmate at Northern Nevada Correctional Center, alleges Eighth

Amendment excessive force and deliberate indifference, equal protection, and First

Amendment retaliation claims arising out of his treatment by Defendants at the

Correctional Center. Mahe, who uses a wheelchair, alleges that Defendant Bartlett,

joined by Defendants Sheeks and Smith, used excessive force when he lifted Mahe

and slammed him to the ground, breaking his arm, in retaliation for Mahe’s reporting

of Defendants. Mahe also asserts that he did not receive adequate medical care and

mental health treatment resulting from the incident, which led to his attempted

suicide, and did not receive his seizure medication, which resulted in him injuring

himself. Further, he alleges that his cell did not comply with the Americans with

Disabilities Act and that he was treated differently than similarly situated inmates

based on his disabilities. Mahe also asserts a First Amendment retaliation claim

against Defendants Bartlett, Garibaldi, and Bell for allegedly threatening him.

2 Mahe sued Defendants under 42 U.S.C. § 1983. Defendants filed a motion

for summary judgment, arguing that Mahe’s complaint should be dismissed because

he failed to exhaust his administrative remedies. Mahe filed an opposition and a

supplemental document, arguing that he thought he had exhausted his administrative

remedies and/or that they were not available to him. Magistrate Judge Baldwin

granted Defendants’ motion for summary judgment, holding that Mahe failed to

show that he exhausted his administrative remedies for each of his claims. Mahe

asks us to overturn the summary judgment, arguing that he exhausted his

administrative remedies, that his former lawyer failed to introduce evidence showing

this, and that Defendants failed to respond and/or lost his grievances.

The Prison Litigation Reform Act requires inmates to exhaust available

administrative remedies—in this case, the Nevada prison system’s grievance

process, governed by Administrative Regulation 740 (AR 740)—before filing suit

in federal court. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 88 (2006).

AR 740 requires that an inmate process a grievance through three levels: (1) Informal

Grievance; (2) First Level Grievance; and (3) Second Level Grievance. AR 740.08-

740.10. Once an inmate receives a response after the Second Level, or the 60-day

response time frame expires with no response, administrative remedies are

considered exhausted and an inmate may file an action in court.

3 Defendants provided an authenticated, documented history of all the

grievance entries filed by Mahe, which shows that he did not complete all three

levels of grievances for his claims or did not do so within the required timeframe of

AR 740. Mahe contests this and asserts that he filed sufficient grievances and/or

that Defendants purposefully lost or misplaced his grievances. The district court did

not err in holding that Mahe’s pleadings that his forms must have been misplaced—

without more specific factual support—too speculative to create a genuine issue for

trial. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

Meanwhile, Defendants met their burden by providing non-speculative evidence.

Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc).

Nor did the district court err in holding that Mahe’s “belief” that he “did [his]

best” to follow all PLRA requirements failed to serve as an exception to the

exhaustion requirement. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986) (a non-moving party at summary judgment

must do more than simply show that there is some “metaphysical doubt” as to the

material facts). The PLRA makes it clear that exhaustion of available administrative

remedies is mandatory before an inmate may file an action in court. Rumbles v. Hill,

182 F.3d 1064, 1066 (9th Cir. 1999). Although Mahe faced hurdles in completing

the grievance process, he has not shown how such remedies were “unavailable” to

him. Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017). Though he explains

4 that he was confused by the process and did not receive adequate help from his

former lawyer, the record indicates that the grievance procedure here was known

and knowable with reasonable effort, as the procedure was explained to Mahe

numerous times by prison officials. Albino v. Baca, 697 F.3d 1023, 1037 (9th Cir.

2012), on reh’g en banc, 747 F.3d 1162 (9th Cir. 2014).

The district court did not err in holding that Defendants met their burden to

establish that Mahe failed to exhaust his administrative remedies for each claim and

therefore there was no genuine dispute as to any material fact for trial.

AFFIRMED.