1 SH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kenneth W. Reed, No. CV 21-00016-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Trinity Services Group Incorporated, et 13 al., 14 Defendants.
15 Plaintiff Kenneth W. Reed, who is currently confined in Arizona State Prison 16 Complex-Tucson, Winchester Unit, brought this civil rights case pursuant to 42 U.S.C. § 17 1983. (Doc. 25.) Defendants Merriman and Montaño move for summary judgment (Doc. 18 155), and Plaintiff did not respond, despite being granted additional time to do so (see Doc. 19 168 (giving Plaintiff until September 2, 2022 to respond to the Motion for Summary 20 Judgment)).1 Defendant Muko joins in the Motion for Summary Judgment. (Doc. 212.) 21 I. Background 22 On screening Plaintiff’s First Amended Complaint (Doc. 25) under 28 U.S.C. § 23 1915A(a), the Court determined that Plaintiff stated Eighth Amendment deliberate 24 indifference claims against Defendants Montaño, Merriman, Gaye, Muko, and Tuozzo 25 based on their alleged failure in August 2018 to ensure that Plaintiff received all of his 26 meals as required under the food service contract between the Arizona Department of 27
28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 157.) 1 Corrections (ADC) and Trinity Services Group. (Doc. 27 at 12.) The Court directed them 2 to answer and dismissed the remaining claims and Defendants. (Id. at 12, 18.) Thereafter, 3 the Court dismissed Defendants Gaye and Tuozzo without prejudice for failure to timely 4 serve. (Docs. 125, 162.) 5 Defendants Montaño and Merriman now move for summary judgment and argue 6 that Plaintiff did not exhaust the available administrative remedies, they were not 7 deliberately indifferent to Plaintiff’s health and safety, and they are entitled to qualified 8 immunity. (Doc. 155.) Defendant Muko joins in the motion. (Doc. 212.) Because Plaintiff 9 did not file a response or controverting statement of facts, the Court will consider 10 Defendants’ facts undisputed unless they are clearly controverted by Plaintiff’s first-hand 11 allegations in the verified First Amended Complaint or other evidence on the record. 12 Where the nonmovant is a pro se litigant, the Court must consider as evidence in opposition 13 to summary judgment all the nonmovant’s contentions set forth in a verified complaint or 14 motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 15 II. Summary Judgment Standard 16 A court must grant summary judgment “if the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 18 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 19 movant bears the initial responsibility of presenting the basis for its motion and identifying 20 those portions of the record, together with affidavits, if any, that it believes demonstrate 21 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 22 If the movant fails to carry its initial burden of production, the nonmovant need not 23 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 24 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 25 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 26 contention is material, i.e., a fact that might affect the outcome of the suit under the 27 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 28 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 1 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 2 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 3 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 4 it must “come forward with specific facts showing that there is a genuine issue for trial.” 5 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 6 citation omitted); see Fed. R. Civ. P. 56(c)(1). 7 At summary judgment, the judge’s function is not to weigh the evidence and 8 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 9 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 10 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 11 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 12 III. Exhaustion 13 A. Legal Standard 14 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 15 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 16 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 17 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 18 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 19 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 20 (2002), regardless of the type of relief offered through the administrative process, Booth v. 21 Churner, 532 U.S. 731, 741 (2001). 22 The defendant bears the initial burden to show that there was an available 23 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 24 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 25 demonstrate that applicable relief remained available in the grievance process).
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1 SH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kenneth W. Reed, No. CV 21-00016-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Trinity Services Group Incorporated, et 13 al., 14 Defendants.
15 Plaintiff Kenneth W. Reed, who is currently confined in Arizona State Prison 16 Complex-Tucson, Winchester Unit, brought this civil rights case pursuant to 42 U.S.C. § 17 1983. (Doc. 25.) Defendants Merriman and Montaño move for summary judgment (Doc. 18 155), and Plaintiff did not respond, despite being granted additional time to do so (see Doc. 19 168 (giving Plaintiff until September 2, 2022 to respond to the Motion for Summary 20 Judgment)).1 Defendant Muko joins in the Motion for Summary Judgment. (Doc. 212.) 21 I. Background 22 On screening Plaintiff’s First Amended Complaint (Doc. 25) under 28 U.S.C. § 23 1915A(a), the Court determined that Plaintiff stated Eighth Amendment deliberate 24 indifference claims against Defendants Montaño, Merriman, Gaye, Muko, and Tuozzo 25 based on their alleged failure in August 2018 to ensure that Plaintiff received all of his 26 meals as required under the food service contract between the Arizona Department of 27
28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 157.) 1 Corrections (ADC) and Trinity Services Group. (Doc. 27 at 12.) The Court directed them 2 to answer and dismissed the remaining claims and Defendants. (Id. at 12, 18.) Thereafter, 3 the Court dismissed Defendants Gaye and Tuozzo without prejudice for failure to timely 4 serve. (Docs. 125, 162.) 5 Defendants Montaño and Merriman now move for summary judgment and argue 6 that Plaintiff did not exhaust the available administrative remedies, they were not 7 deliberately indifferent to Plaintiff’s health and safety, and they are entitled to qualified 8 immunity. (Doc. 155.) Defendant Muko joins in the motion. (Doc. 212.) Because Plaintiff 9 did not file a response or controverting statement of facts, the Court will consider 10 Defendants’ facts undisputed unless they are clearly controverted by Plaintiff’s first-hand 11 allegations in the verified First Amended Complaint or other evidence on the record. 12 Where the nonmovant is a pro se litigant, the Court must consider as evidence in opposition 13 to summary judgment all the nonmovant’s contentions set forth in a verified complaint or 14 motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 15 II. Summary Judgment Standard 16 A court must grant summary judgment “if the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 18 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 19 movant bears the initial responsibility of presenting the basis for its motion and identifying 20 those portions of the record, together with affidavits, if any, that it believes demonstrate 21 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 22 If the movant fails to carry its initial burden of production, the nonmovant need not 23 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 24 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 25 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 26 contention is material, i.e., a fact that might affect the outcome of the suit under the 27 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 28 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 1 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 2 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 3 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 4 it must “come forward with specific facts showing that there is a genuine issue for trial.” 5 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 6 citation omitted); see Fed. R. Civ. P. 56(c)(1). 7 At summary judgment, the judge’s function is not to weigh the evidence and 8 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 9 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 10 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 11 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 12 III. Exhaustion 13 A. Legal Standard 14 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 15 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 16 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 17 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 18 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 19 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 20 (2002), regardless of the type of relief offered through the administrative process, Booth v. 21 Churner, 532 U.S. 731, 741 (2001). 22 The defendant bears the initial burden to show that there was an available 23 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 24 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 25 demonstrate that applicable relief remained available in the grievance process). Once that 26 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 27 fact, exhausted administrative remedies or “come forward with evidence showing that there 28 is something in his particular case that made the existing and generally available 1 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 2 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 3 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 4 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 5 If summary judgment is denied, disputed factual questions relevant to exhaustion 6 should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 7 exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted 8 administrative remedies, that administrative remedies were not available, or that the failure 9 to exhaust administrative remedies should be excused, the case proceeds to the merits. Id. 10 at 1171. 11 B. ADC Grievance Process 12 During the relevant time period of Plaintiff’s claims, ADC Department Order (DO) 13 802 (eff. Oct. 16, 2016), governed the prisoner grievance procedure. (Doc 156 (Defs.’ 14 Statement of Facts) ¶ 22.) DO 802 sets forth the process that prisoners are required to 15 follow to complete the ADC’s grievance procedure. (Id.) The grievance procedure “is 16 designed to address inmate complaints related to any aspect of institutional life or condition 17 of confinement which directly and personally affects the inmate grievant[.]” (Id. ¶ 23.) 18 DO 802 requires that the prisoner must first attempt to resolve any “complaints 19 through informal means including, but not limited to, discussion with staff in the area most 20 responsible for the complaint or through the submission of an Inmate Informal Complaint 21 Resolution, Form 802-11.” (Id. ¶ 24.) 22 1. Non-Medical Grievances 23 For non-medical grievances, if a prisoner is unable to resolve a complaint through 24 informal means, the prisoner may submit an Informal Complaint on an Inmate Informal 25 Complaint Resolution form to the Correctional Officer (“CO”) III in the prisoner’s prison 26 unit within 10 workdays from the date of the action that caused the complaint. (Id. ¶ 25.) 27 The CO III investigates the informal complaint, attempts to resolve it informally, and 28 provides a response to the prisoner within 15 workdays of its receipt. 1 If a prisoner’s informal complaint cannot be resolved informally, the prisoner may 2 submit a formal grievance to the unit CO IV Grievance Coordinator within 5 workdays 3 from the date the prisoner receives the CO III’s response to the prisoner’s informal 4 complaint. (Id. ¶ 27.) Within 15 workdays after the receipt of the formal grievance, the 5 Deputy Warden issues a written response to the prisoner. (Id. ¶ 28.) 6 If the prisoner is not satisfied with the Deputy Warden’s response, the prisoner may 7 appeal the response to the Director within 5 workdays of receipt of the formal grievance 8 response from the Deputy Warden. (Id. ¶ 29.) Within thirty calendar days, the Central 9 Office Appeals Officer must prepare a response and submit it to the Director or Director’s 10 designee for signature. (Id. ¶ 30.) The Director’s response is final, and constitutes an 11 exhaustion of all remedies within the ADC for standard grievances. (Id. ¶ 32.) 12 2. Medical Grievances 13 For non-medical grievances, if a prisoner is unable to resolve a complaint through 14 informal means, the prisoner has 5 workdays from receipt of the informal response to file 15 a formal grievance to the CO IV Grievance Coordinator. (Doc. 156-2 at 14 (DO 802 § 16 5.1).) The Grievance Coordinator will forward the medical grievance to the Director of 17 Nursing (DON), and within 15 workdays, the DON must investigate the complaint and 18 prepare a written response, which will be forwarded to the prisoner. (Id. (DO 802 § 5.2).) 19 If the prisoner is dissatisfied with the DON’s response, the prisoner can appeal the 20 DON’s decision to the Facility Health Administrator (FHA) within 5 workdays. (Id. (DO 21 6.0).) Within 30 workdays, the FHA must prepare a written response, which will be 22 forwarded to the prisoner. (Id.) The FHA’s response is final, and constitutes an exhaustion 23 of all remedies within the ADC for medical grievances. (Id.) 24 For both standard (non-medical) and medical grievances, if a prisoner does not 25 receive a response from the designated official at any stage of the grievance process within 26 the time limits set in the Inmate Grievance Procedure, the prisoner is allowed to proceed 27 to the next step of the grievance process. (Doc. 156 ¶ 31.) The time to proceed to the next 28 step begins to run the day after a response was due back to the prisoner. (Id.) 1 C. Plaintiff’s Grievance History 2 On August 16, 24, and 25, and September 2, 2018, Plaintiff sent inmate letters to 3 Defendant Montaño regarding the food service discrepancies and the eleven meals he had 4 not received because no corrective action had been taken: the August 16 inmate letter 5 informed Defendant Montaño about three meals from August 15–16; the August 24 inmate 6 letter informed Defendant Montaño about the discrepancies in five meals from August 17– 7 24; the August 25 inmate letter informed Defendant Montaño about dinner that day; and 8 the September 2 inmate letter informed Defendant Montaño about the two meals on August 9 29 and 31. (Doc. 25 at 9, 12–13.) Plaintiff asserts that Defendant Montaño did not respond 10 to any of the letters and did not take any corrective action. (Id.) 11 On August 24, 2018, Plaintiff sent an inmate letter to Defendant Merriman 12 informing him about the food service problems on August 15–22 and explaining that he 13 had not received eight meals. (Id. at 12.) On August 25, 2018, Plaintiff sent an inmate 14 letter to Defendant Merriman informing him about the food service problem that day and 15 explaining that he had not received dinner because no corrective action had been taken. 16 (Id. at 13.) On September 2, 2018, Plaintiff sent an inmate letter to Defendant Merriman 17 informing him about the food service discrepancies on August 29 and 31, and explaining 18 that he had not received those two meals because no corrective action had been taken. (Id.) 19 Plaintiff asserts Defendant Merriman did not respond to any of the letters and did not take 20 any corrective action. (Id. at 12–13.) 21 Janah Barreras is an Administrative Services Officer II for the ADC, and her duties 22 include investigating and tracking non-medical or “standard” grievance appeals to the ADC 23 Director or Director’s level, as well as maintaining a computerized record of such appeals. 24 (Doc. 156-2 (Barreras Decl.) ¶ 4.) Barreras is responsible for the Central Office Grievance 25 Appeals record, which provides a complete record of all final Director’s-level grievance 26 appeals received by the ADC’s Central Office. (Id.) 27 Barreras conducted a search of the ADC’s Central Office Grievance Appeals 28 records for any non-medical grievance appeals to the Director or Director’s Level 1 submitted by Plaintiff involving any grievance concerning food-related issues from August 2 1, 2018 through October 31, 2018. (Id. ¶ 18.) Her search did not return any results showing 3 that Plaintiff submitted any grievance appeals to the Director or Director’s Level regarding 4 any grievance concerning food-related issues from that time period. (Id. ¶ 19.) 5 In his First Amended Complaint, Plaintiff checked the boxes indicating that there 6 are administrative remedies available at his institution and that he submitted a request for 7 administrative relief regarding his claims in Count One. (Doc. 25 at 15.) However, 8 Plaintiff checked the box indicating that he did not appeal his request for administrative 9 relief regarding his claims in Count One to the highest level. (Id.) Plaintiff stated that, 10 “Arizona Department of Corrections’ policy, Department Order 802, Inmate Grievance 11 Procedure, does not permit appeal of a medical grievance.” (Id.) 12 D. Discussion 13 On this record, the facts show that an administrative remedy was available to 14 Plaintiff under DO 802 and that Plaintiff did not fully exhaust the requirements of DO 802. 15 Regardless of whether Plaintiff pursued his complaint as a medical grievance or as a 16 standard/non-medical grievance, he was required to appeal his complaint to either the FHA 17 or to the ADC Director to fully exhaust his claims, and the facts show that he did not. 18 Construing the evidence in Plaintiff’s favor, Plaintiff filed multiple inmate letters in an 19 attempt to resolve his complaints informally, but he did not receive responses to his letters. 20 (Doc. 25 at 12–13.) Even if this is true, DO 802 provides that prisoners can proceed to the 21 next step of the grievance process if they do not receive timely responses at any stage of 22 the process. (Doc. 156 ¶ 31.) Plaintiff does not explain why he failed to continue the 23 grievance process. Moreover, Plaintiff did not provide a separate or controverting 24 statement of facts, and the scant evidence concerning exhaustion available in his verified 25 First Amended Complaint fails to create a genuine issue of material fact that the grievance 26 process was unavailable to him. 27 Because Plaintiff does not rebut Defendants’ evidence that he did not exhaust the 28 available administrative remedies, and he has not presented competent evidence that the 1 | administrative remedy was unavailable to him, the Court will grant summary judgment to 2| Defendants and dismiss Plaintiff's claims against them. See Lira v. Herrera, 427 F.3d 3) 1164, 1170 (9th Cir. 2005) (If a court grants summary judgment on non-exhaustion 4 grounds, dismissal is without prejudice). As such, the Court will not address Defendants’ 5 | arguments concerning qualified immunity and the merits of Plaintiff's claims. 6| ORDERED: 7 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 8 | for Summary Judgment (Doc. 155). 9 (2) Defendants’ Motion for Summary Judgment (Doc. 155) is granted, and 10 | Plaintiff's remaining claims are dismissed without prejudice for failure to exhaust the 11 | available administrative remedies. 12 (3) The Clerk of Court must terminate the action and enter judgment 13 | accordingly. 14 Dated this 3rd day of January, 2023. 15 16 a 17 18 _ James A. Teil Org Senior United States District Judge 19 20 21 22 23 24 25 26 27 28