1 WO 2 JL 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Dimitri Rozenman, No. CV 18-00222-TUC-RM 11 Plaintiff, 12 v. ORDER 13 Charles L. Ryan, et al., 14 Defendants.
15 16 Plaintiff Dimitri Rozenman, who is currently confined in the Arizona State Prison 17 Complex-Tucson, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendant 18 Mattos moves for summary judgment. (Doc. 16.) Plaintiff was informed of his rights and 19 obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en 20 banc) (Doc. 20), and he opposes the Motion. (Doc. 30.) Plaintiff has filed a Motion to 21 Amend his Complaint (Doc. 34), to which Defendant has responded (Doc. 35). 22 The Court will deny Defendant’s Motion for Summary Judgment and grant 23 Plaintiff’s Motion to Amend. 24 I. Background 25 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 26 a claim in Count One against Defendant Mattos and directed him to answer the 27 claim. (Doc. 8.) The Court dismissed the remaining claims and Defendants. (Id.) 28 . . . . 1 II. Summary Judgment Standard 2 A court must grant summary judgment “if the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 4 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 5 movant bears the initial responsibility of presenting the basis for its motion and identifying 6 those portions of the record, together with affidavits, if any, that it believes demonstrate 7 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 8 If the movant fails to carry its initial burden of production, the nonmovant need not 9 produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 10 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the 11 nonmovant to demonstrate the existence of a factual dispute and (1) that the fact in 12 contention is material, i.e., a fact that might affect the outcome of the suit under the 13 governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a 14 reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 15 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 16 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact 17 conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288- 18 89 (1968); however, it must “come forward with specific facts showing that there is a 19 genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 20 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 21 At summary judgment, the judge’s function is not to weigh the evidence and 22 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 23 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 24 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 25 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 26 . . . . 27 . . . . 28 . . . . 1 III. Facts 2 A. ADC’s Drug Testing Policy 3 ADC Department Order (DO) 709 governs substance abuse and provides for 4 substance abuse prevention and interdiction tactics, as well as disciplinary actions for 5 inmates who violate rules related to illegal alcohol and substance abuse. (Doc. 17 at 1 ¶ 6 1.)1 Inmates housed in institutions and correctional release centers are charged with the 7 appropriate disciplinary rule violation when: (1) they produce a urine specimen which tests 8 positive for illegal drugs or alcohol; (2) they are found in possession of illegal drugs, drugs 9 not legally prescribed, or alcohol; (3) they are involved in smuggling illegal substances or 10 alcohol; or (4) they disobey a direct order from staff by refusing or failing to produce a 11 urine specimen. (Id. ¶ 2.) Disciplinary sanctions are imposed for all violations resulting 12 in guilty findings. (Id.) 13 Inmates are urinalysis (“UA”) tested on a random basis. (Id. ¶ 3.) When an inmate 14 either refuses a UA, tests positive, or fails to produce a sample, he is tested on a targeted 15 basis for three months. (Id.) At the end of three months, the inmate is placed back on 16 random testing. (Id.) There is no provision in DO 709 for methods other than urinalysis 17 for testing for illegal substances. (Id. ¶ 4.) 18 B. ADC’s Disciplinary Procedures 19 Disciplinary sanctions applicable to inmates found guilty of a 38B violation, 20 “positive test or refusal of UA,” are set forth in DO 803, Inmate Discipline System. (Id. ¶ 21 5.) Sanctions include loss of privileges, such as contact visitation; loss of earned release 22 credits; restitution; extra duty hours; or placement in non-earning parole class III. (Id.) 23 Disciplinary sanctions are determined by the Disciplinary Hearing Officer, who hears the 24 case and renders a decision. (Id. ¶ 8.) Following each hearing conducted by a Disciplinary 25 Hearing Officer, the unit Deputy Warden performs an administrative review of the 26 documentation. (Id. ¶ 9.) If the inmate appeals a disciplinary finding, “the focus of the 27
28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 review is whether the inmate was afforded due process, whether there was adequate proof, 2 whether the case was appropriately charged, and whether penalties were properly 3 assessed.” (Id. ¶ 10.) 4 C. Plaintiff’s Disciplinary Proceedings 5 Plaintiff has been assigned to the Santa Rita Unit since July 2015. (Id. ¶ 6.) Plaintiff 6 has received four disciplinary tickets for “positive test or refusal of UA” since his arrival 7 at the Santa Rita Unit. (Id. ¶ 7; Doc. 17-1 at 50.) Plaintiff has not received any new 8 disciplinary tickets since May 2018. (Doc. 17 ¶ 12.) 9 1. March 30, 2017 Disciplinary Ticket 10 On March 30, 2017, Sergeant Coleman filed an Inmate Disciplinary Report because 11 Plaintiff had failed to produce a urine sample within two hours. (Doc. 17-1 at 52.) Officer 12 Luke verbally placed Plaintiff on report, and Sergeant Coleman wrote the report. (Id.) 13 Officer Barraza investigated the charge and referred it to the Disciplinary Hearing Officer 14 as a felony violation. (Id.) The Disciplinary Hearing was conducted on March 30, 2017, 15 and Hearing Officer Stangl found Plaintiff guilty of a felony violation. (Id. at 53.) Stangl’s 16 finding of guilt was based on the Disciplinary Report and Investigative Reports. 17 On May 1, 2017, Plaintiff submitted an Inmate Letter to Deputy Warden McAdorey. 18 (Id. at 62.) Plaintiff noted that he had filed an appeal of Stangl’s finding of guilty and that 19 Plaintiff had spoken to McAdorey in person, explaining that he has a medical condition, 20 interstitial cystitis, for which he takes three separate medications. (Id.) Plaintiff stated that 21 one of the medications he takes is Flexeril, which he takes specifically because he has “a 22 hard time relaxing his bladder to urinate.” (Id.) Plaintiff wrote that McAdorey had told 23 Plaintiff to remind him in his appeal that they had a verbal conversation on that topic, but 24 Plaintiff had not heard back and was concerned, “since it ha[d] been a while.” (Id.) 25 Plaintiff stated that he can urinate if he is left alone for 10 minutes in a day room and noted 26 that officers could take him to a day room, where kitchen workers get strip-searched, and 27 have Plaintiff strip-searched to make sure he had nothing hidden. (Id.) Plaintiff stated that 28 1 if he were given 10 minutes, he would be able to produce a full cup and that he was more 2 than willing to provide any other test, such as blood or hair, at his own expense. (Id.) 3 On May 15, 2017, McAdorey sent Plaintiff an Inmate Letter Response, stating that 4 he had answered Plaintiff’s appeal in his favor “due to some cloudy wording by medical 5 staff.” (Id. at 63.) McAdorey noted that the decision stipulated that from that point 6 forward, Plaintiff would need to follow the UA policy to the letter or request a catheter. 7 (Id.) 8 2. February 24, 2018 Disciplinary Ticket 9 On February 24, 2018, Officer Hernandez submitted an Inmate Disciplinary Report 10 against Plaintiff. (Id. at 55.) Hernandez stated that Plaintiff had failed to produce a sample 11 after two hours, and CO II Morrison and Hernandez advised Plaintiff that if they opened 12 the UA cup and he could not produce, he would be charged for the cup. (Id.) Plaintiff 13 stated that he had a medical issue. (Id.) Hernandez’s report stated that Plaintiff had told 14 him and Officer Morrison that he could not produce a sample because officers were 15 watching him and that he had a medical waiver and agreement with Deputy Warden 16 McAdorey. (Id. at 56.) Lieutenant Gerlach verbally placed Plaintiff on report. (Id. at 55.) 17 Officer Barraza investigated the charge and referred it to the Disciplinary Hearing Officer 18 as a felony violation. (Id.) 19 On February 26, 2018, Barraza submitted an Inmate Discipline-Investigative Report 20 that stated that Plaintiff was advised to return a completed witness statement within 48 21 hours. (Id. at 58.) Plaintiff completed an Inmate Discipline-Witness 22 Request/Statement/Refusal, stating that he had a letter from McAdorey stating that Plaintiff 23 needed to follow the UA policy “to the letter” or request a catheter. (Id. at 59.) Plaintiff 24 stated that he had asked CO II Morrison for a catheter and had Morrison “get” Gerlach so 25 that Plaintiff could tell Gerlach about the letter. (Id.) Morrison indicated on the Witness 26 Statement that Plaintiff had requested a catheter and that Plaintiff did ask Morrison to get 27 Gerlach to explain that he had a letter from McAdorey stating that Plaintiff had a waiver 28 to use a catheter. (Id.) 1 The Disciplinary Hearing was conducted on February 28, 2018. (Id. at 60.) 2 Hearing Officer Carpenter found Plaintiff guilty of a felony violation, based on the 3 Disciplinary Report and because Plaintiff did not produce a UA. (Id.) The same day, 4 Plaintiff submitted an Appeal of Disciplinary Charge to CO IV Brookhart. (Id. at 61.) In 5 the Appeal, Plaintiff stated that he had interstitial cystitis, for which he takes medication 6 daily. (Id.) Plaintiff stated that he is unable to relax his bladder to urinate. (Id.) He 7 asserted that the disciplinary finding implies that it is his fault that the medical department 8 refuses to provide catheters. (Id.) Plaintiff contended this was not his fault, especially 9 since McAdorey had written a letter authorizing Plaintiff to request a catheter. (Id.) 10 On March 9, 2018, the Appeals Officer upheld the finding of guilt in a Decision of 11 Appeal. (Id. at 64.) The Decision stated that the Appeals Officer saw no due process issues 12 in the case, noting that Plaintiff was given the opportunity to submit witness statements. 13 (Id.) The Decision further stated that Plaintiff’s contention that he is not able to provide a 14 urine sample was not supported by any documentation from medical staff, and his 15 contention that he should have been catheterized to provide a sample is not allowed for by 16 the drug-testing policy. (Id.) 17 On March 13, 2018, Plaintiff filed an Appeal of Disciplinary Charge. (Id. at 65.) 18 Plaintiff reiterated that he has interstitial cystitis, for which he takes medication. (Id.) 19 Plaintiff stated that he requested but was denied a catheter, which was not his fault, 20 especially in light of McAdorey’s letter. (Id.) Plaintiff attached copies of his Inmate Letter 21 to McAdorey and McAdorey’s Inmate Letter Response. (Id. at 66-67.) The same day, 22 CO III Barraza sent a Second-Level Disciplinary Appeal Package to the Disciplinary 23 Appeals Officer. (Id. at 68.) On March 21, 2018, the Central Office issued an Inmate 24 Disciplinary Appeal Response Second Level. (Id. at 69.) The Response stated that the 25 issues raised in Plaintiff’s narrative had been considered, but no due process error was 26 found. (Id.) The findings and recommended penalties were upheld, and the appeal was 27 denied. (Id.) 28 . . . . 1 3. March 9, 2018 Disciplinary Ticket 2 On March 9, 2018, Sergeant Bouey wrote an Inmate Disciplinary Report against 3 Plaintiff. (Id. at 71.) The Report stated that Plaintiff was given two hours and eight ounces 4 of water to produce a sample, per policy, and Plaintiff failed to produce a sample within 5 two hours. (Id.) Barraza investigated the charge and referred it to the Disciplinary Hearing 6 Officer as a felony violation. (Id.) On March 12, 2018, Barraza completed an Inmate 7 Discipline-Investigative Report that stated that no witnesses were requested, and no 8 witness request statements were issued. (Id. at 72.) CO III Torres was assigned to assist 9 Plaintiff with the charge. (Id. at 73.) On March 15, 2018, Plaintiff’s Discipline Case was 10 postponed to accommodate the Disciplinary Hearing Officer’s schedule and to 11 accommodate the Coordinator’s schedule. (Id. at 74.) 12 The Disciplinary Hearing was conducted on March 22, 2018. (Id. at 75.) The 13 Disciplinary Hearing Officer found Plaintiff guilty of a felony violation, based on the 14 Disciplinary Report and Investigative Reports. (Id.) The same day, Plaintiff filed an 15 Appeal of Disciplinary Charge. (Id. at 76.) Plaintiff stated that because of his interstitial 16 cystitis, he is unable to provide a UA according to the policy. (Id.) Plaintiff asserted that 17 the policy should, but does not, provide an alternative, such as a blood draw or a catheter. 18 (Id.) Plaintiff claimed Barraza refused to contact medical staff, although Plaintiff had 19 previously waived his confidentiality privilege to his medical information. (Id.) Plaintiff 20 requested that medical staff be contacted to “verify the truth.” (Id.) Plaintiff also noted 21 that he was appealing the ticket “in order to exhaust [his] remedies.” (Id.) 22 On April 17, 2018, Defendant Mattos submitted a Decision of Appeal. (Id. at 77.) 23 The Decision stated that Mattos had reviewed Plaintiff’s documents and had spoken to 24 medical staff “concerning [Plaintiff’s] supposed issue.” (Id.) The Decision noted that 25 medical staff had stated that Plaintiff “should have no issues” and that providing a 26 urinalysis sample “was not a medical issue.” (Id.) Mattos upheld the findings and denied 27 the appeal. (Id.) 28 1 On April 18, 2018, Plaintiff submitted an Appeal of Disciplinary Charge. (Id. at 2 78.) Plaintiff asserted that for prisoners with disabilities, like Plaintiff, there should exist 3 a procedure to provide a urine sample through catheterization or to provide a blood sample. 4 (Id.) Plaintiff stated that such a procedure, which would enable him to prove he is drug- 5 free, does not exist and that he intended to challenge the policy in district court. (Id.) 6 Plaintiff asserted that the existing procedure was inadequate for prisoners, like him, who 7 have a disability. (Id.) On April 19, 2018, CO III Barraza submitted the Second-Level 8 Disciplinary Appeal Package to the Disciplinary Appeals Officer. (Id. at 79.) On May 7, 9 2018, the Central Office issued an Inmate Disciplinary Appeal Response Second Level. 10 (Id. at 80.) The Response stated that the record contained within the case file had been 11 reviewed, and the issues raised in Plaintiff’s narrative had been considered, but no due 12 process error was found. (Id.) The findings and recommended penalties were upheld, and 13 the appeal was denied. (Id.) 14 4. April 21, 2018 Disciplinary Ticket 15 On April 21, 2018, Officer Murelli filed an Inmate Disciplinary Report against 16 Plaintiff. (Id. at 82.) Murelli stated that on April 20, 2018, Plaintiff was randomly chosen 17 for a UA, and “right from the beginning he stated that he was not going to produce a 18 sample.” (Id.) Murelli stated that he offered Plaintiff one eight-ounce cup of water and 19 waited for two hours. (Id.) At the end of two hours, Murelli verbally placed Plaintiff on 20 report. (Id.) Barraza investigated the charge and referred it to the Disciplinary Hearing 21 Officer as a felony violation. (Id.) On April 24, 2018, Barraza completed an Inmate 22 Discipline-Investigative Report that noted that Plaintiff had stated he was not guilty “due 23 to disability.” (Id. at 83.) The same day, Plaintiff signed an Inmate Discipline-Hearing 24 Waiver, in which he waived his right to 48 hours’ prior notice before the Disciplinary 25 Hearing in order to “get it over with.” (Id.) 26 The Disciplinary Hearing was conducted on April 26, 2018. (Id. at 86.) Plaintiff 27 declined staff assistance. (Id.) The Disciplinary Hearing Officer found Plaintiff guilty of 28 a felony violation, based on the Disciplinary Report and Investigative Reports. (Id.) The 1 same day, Plaintiff submitted an Appeal of Disciplinary Charge. (Id. at 87.) Plaintiff stated 2 that he was appealing the ticket “on the same grounds as before”: the prison policy is 3 inadequate for a person with a disability to prove that he is drug-free by failing to provide 4 alternative means of drug testing, such as catheterization, a blood draw, or a hair sample. 5 (Id.) Plaintiff noted that on April 23, 2018, he had filed a Complaint in district court 6 “asking them to resolve this issue.” (Id.) 7 On May 4, 2018, Defendant Mattos issued a Decision of Appeal. (Id. at 88.) The 8 Decision stated that Mattos had reviewed Plaintiff’s case and saw “no issues with the due 9 process [Plaintiff was] afforded.” (Id.) The Decision stated that Plaintiff’s contention that 10 he should not have been found guilty based on a medical disability was not supported by 11 any evidence. (Id.) Mattos upheld the finding of guilt and penalties and denied the appeal. 12 (Id.) On May 8, 2018, Plaintiff submitted an Appeal of Disciplinary Charge, again arguing 13 that the UA policy was inadequate for prisoners with disabilities. (Id. at 89.) On May 11, 14 2018, CO III Barraza submitted the Second-Level Disciplinary Appeal Package to the 15 Disciplinary Appeals Officer. (Id. at 90.) On May 18, 2018, the Central Office issued an 16 Inmate Disciplinary Appeal Response Second Level, denying Plaintiff’s appeal. (Id. at 91.) 17 D. ADC’s Grievance Procedure 18 During the relevant time, DO 802, Inmate Grievance Procedure, sets forth the 19 process that inmates are required to follow to properly complete and exhaust ADC’s 20 grievance procedure through the Director’s Level for non-medical or “standard” 21 grievances. (Doc. 17 ¶ ¶ 13-14.) For each ADC unit, a staff member, customarily a 22 member of Programs (counseling), is designated by the Deputy Warden to serve as the 23 institutional Grievance Coordinator. (Id. ¶ 15.) The Grievance Coordinator’s duties and 24 responsibilities include keeping records of grievances; accepting properly prepared 25 grievances; returning improper grievances to inmates unprocessed with an explanation of 26 the deficiency; assigning grievance case numbers; investigating grieved issues; responding 27 to inmates; providing instructions on how to appeal; and accepting and forwarding 28 grievance appeals and appeal responses. (Id.) 1 As part of their orientation, inmates are instructed on how to properly use the 2 grievance procedure. (Id. ¶ 16.) A copy of the grievance policy is available for inmate use 3 at the inmate resource center/library in each prison facility, and inmates may seek 4 assistance in using the process from their assigned Correctional Officer (“CO”) III. (Id.) 5 The inmate grievance process may be used for “complaints related to any aspect of 6 institutional life or condition of confinement which directly and personally affects the 7 inmate grievant including Department Orders, Director’s Instructions, Post Orders, 8 Technical Manuals, and written instructions, procedures and the actions of staff.” (Id. ¶ 9 17.) 10 Under DO 802, inmates must attempt to resolve all allowed grievance issues 11 informally before submitting a formal grievance. (Id. ¶ 19.) If the inmate is unable to 12 resolve a complaint through informal means, the inmate may submit an Informal Complaint 13 on an Inmate Informal Complaint Resolution form to the CO III in the inmate’s unit. The 14 CO III investigates the informal complaint, attempts to resolve it informally, and provides 15 a response to the inmate within 15 workdays of its receipt. (Id. ¶ 20.) 16 The inmate may submit a formal Inmate Grievance to the unit Grievance 17 Coordinator within 5 workdays from the date the inmate receives the CO III’s response to 18 the inmate’s informal complaint. (Id. ¶ 21.) An inmate may only file one complaint per 19 grievance. (Id.) Within 15 workdays following receipt of the formal inmate grievance, the 20 Deputy Warden issues a written response to the inmate. (Id.) Upon receipt of a proper 21 Inmate Grievance, the Grievance Coordinator logs the grievance and assigns it a sequential 22 number in the Unit Coordinator Grievance Log, Form 802-9. (Id. ¶ 22.) A formal Inmate 23 Grievance that does not conform with the requirements set forth in DO 802 will be returned 24 to the inmate unprocessed, with an explanation of the reason for returning it unprocessed. 25 (Id. ¶ 23.) Grievance Coordinators maintain files of grievances which were returned to 26 inmates unprocessed. (Id. ¶ 24.) 27 If the inmate receives an unfavorable response from the Deputy Warden, the inmate 28 may appeal the response to the Director within 5 workdays of receipt of the formal inmate 1 grievance response from the Deputy Warden. (Id. ¶ 25.) An inmate may not file an appeal 2 to the Director until the grievance procedure within the inmate’s assigned unit and 3 institution has been exhausted. (Id.) Within 30 calendar days, the Central Office Appeals 4 Director must prepare a response and submit it to the Director or the Director’s designee 5 for signature. (Id. ¶ 26.) The Director’s response is final and constitutes exhaustion of all 6 remedies within ADC for standard grievances. (Id. ¶ 27.) 7 The Inmate Grievance Procedure does not serve as a duplicate appeal process or 8 substitute appeal process for disciplinary matters. (Id. ¶ 34.) The disciplinary appeal 9 process under DO 803 applies only to a subject disciplinary ticket and related procedure. 10 (Id. ¶ 35.) 11 E. Plaintiff’s Grievances 12 Plaintiff filed three grievances between July 10, 2015 and November 1, 2018: in 13 August 2017, March 2018, and June 2018. (Id. ¶ 28.) The grievances were categorized as 14 “Health Care” (category 10) issues. (Id. ¶ 29.) None of the grievances referred to ADC 15 policies, Department Orders, procedures, Institution Orders, actions of staff, or disciplinary 16 matters. (Id.) Specifically, none of the grievances complained about “(a) policy or 17 procedures related to urine testing for substance abuse, (b) an alleged inability to provide 18 a urine sample within a two-hour timeframe resulting in disciplinary action; or (c) any type 19 of request for an exemption for medical reasons from standard substance abuse urine 20 testing procedures.” (Id. ¶ 30.) Plaintiff did not initiate or complete any grievances during 21 the relevant time concerning his inability to conform to standard testing procedures by 22 producing a urine sample in the presence of a staff witness within a two-hour timeframe. 23 (Id. ¶ 31.) Plaintiff did not submit any grievance appeal to the Director’s level on any issue 24 between July 10, 2015 and November 1, 2018. (Id. ¶ 37.) 25 IV. Discussion 26 A. Legal Standard for Exhaustion 27 Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust 28 “available” administrative remedies before filing an action in federal court. See 42 U.S.C. 1 § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 2 422 F.3d 926, 934-35 (9th Cir. 2005). The prisoner must complete the administrative 3 review process in accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 4 81, 92 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 5 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative 6 process, Booth v. Churner, 532 U.S. 731, 741 (2001). 7 The defendant bears the initial burden to show that there was an available 8 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 9 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 10 demonstrate that applicable relief remained available in the grievance process). Once that 11 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 12 fact, exhausted administrative remedies or “come forward with evidence showing that there 13 is something in his particular case that made the existing and generally available 14 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 15 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 16 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 17 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 18 If the defendants move for summary judgment for failure to exhaust and the 19 evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies, 20 it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on 21 the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary 22 judgment on issue of exhaustion, but because he would have succeeded had he made such 23 a motion, sua sponte grant of summary judgment was appropriate). 24 B. Parties’ Contentions 25 Defendant argues that although Plaintiff appealed the disciplinary sanctions 26 imposed against him for failing to provide a urine sample for drug testing, he never used 27 ADC’s inmate grievance procedure to seek an accommodation for his disability. (Doc. 16 28 at 1.) Defendant contends that Plaintiff never sought reprieve from the testing requirement 1 itself by using the grievance process. (Id. at 2.) Defendant asserts that the grievance 2 process was available to Plaintiff, but he did not utilize or exhaust the grievance process 3 with respect to his inability to provide a urine sample. (Id. at 4-5.) 4 Defendant also argues that none of Plaintiff’s medical grievances concerned the 5 urinalysis issue. (Id. at 5.) Defendant contends that Plaintiff’s medical grievances “did not 6 provide enough information to allow prison officials to take appropriate responsive 7 measures.” (Id.) Although Plaintiff complained about his bladder condition in all his 8 medical grievances, he did not mention ADC’s drug testing policy or claim that an inability 9 to urinate would unjustly result in disciplinary sanctions. (Id. at 5-6.) Defendant asserts 10 that nothing in Plaintiff’s medical grievances seeking additional medication or an allergy 11 diet could have put ADC on notice that its security protocols needed to be adjusted to 12 accommodate Plaintiff’s condition. (Id. at 6.) 13 Defendant further argues that DO 802 is not a substitute for the disciplinary appeals 14 process, and the “corollary to this is that the disciplinary appeals process is not a substitute 15 for the inmate grievance process.” (Id.) That is, according to Defendant, an inmate cannot 16 properly exhaust available administrative remedies by improperly pursuing relief through 17 the wrong institutional mechanism. (Id.) Defendant contends that in using only the 18 disciplinary process, Plaintiff deprived ADC “of a fair opportunity to consider his real 19 grievance.” (Id. at 7.) The disciplinary appeals process “simply does not allow for 20 consideration of whether individual exceptions to policy are warranted for individual 21 inmates.” (Id.) 22 In response, Plaintiff argues that he exhausted administrative remedies three times. 23 (Doc. 30 at 6.) Plaintiff asserts that on May 1, 2017, he “effectively commenced/used” the 24 grievance process and obtained the relief he sought—that is, a waiver that permitted him 25 to use a catheter to produce a urine sample—which obviated the need to further use the 26 process. (Id.) Thus, Plaintiff argues that McAdorey’s May 8, 2018 and May 15, 2017 27 written responses constituted a successful conclusion of the pre-ICR informal attempt to 28 resolve the matter, in accordance with DO 802.02.1.1. (Id. at 7.) Plaintiff further contends 1 that he provided Director Ryan and Defendant Mattos with no fewer than three 2 opportunities to address his claim for accommodation of his disability in his disciplinary 3 appeals. (Id.) Plaintiff asserts that when McAdorey’s directive to accommodate Plaintiff 4 was not carried out by staff, Plaintiff repeatedly gave Mattos notice of the issue through 5 three separate disciplinary proceedings. (Id.) 6 Plaintiff contends that his use of the disciplinary appeals process was the correct 7 “institutional mechanism” to alert Mattos to Plaintiff’s claim. (Id. at 10.) Plaintiff asserts 8 that the current UA policy does not explicitly or implicitly prohibit use of a catheter to 9 facilitate urination. (Id. at 11.) Rather, the policy only requires UA staff to visually observe 10 the urine leaving the inmate’s urethra and entering the container. (Id.) Plaintiff argues that 11 throughout the disciplinary process, he reiterated that his disability prevented him from 12 producing a urine sample and requested that he be allowed to use a catheter. (Id. at 12.) 13 He contends that Mattos “passed on three opportunities to modify or dismiss the charges 14 against Plaintiff” and instead threatened Plaintiff by telling him that UAs would continue 15 every 30 days. (Id.) 16 C. Discussion 17 Exhaustion requires complying with an agency’s “critical procedural rules,” and it 18 is justified by the agency’s need to “impos[e] some orderly structure on the course of its 19 proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). In addition to complying with 20 the strict letter of the PLRA, requiring prisoners to exhaust administrative remedies serves 21 other important objectives. Administrative appeals alert prison officials to “the nature of 22 the wrong for which redress [was] sought,” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th 23 Cir. 2009) (citation and internal quotation marks omitted), allowing them to take corrective 24 action where appropriate, Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016). Exhaustion 25 also allows a prison’s administration “to address complaints about the program it 26 administers before being subjected to suit, reducing litigation to the extent complaints are 27 satisfactorily resolved, and improving litigation that does occur by leading to the 28 preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007); see also 1 Woodford, 548 U.S. at 93-95 (“The PLRA attempts to eliminate unwarranted federal-court 2 interference with the administration of prisons, and thus seeks to afford corrections officials 3 time and opportunity to address complaints internally before allowing the initiation of a 4 federal case” (alteration, citation, and internal quotation marks omitted).). 5 “The level of detail necessary in a grievance to comply with the grievance 6 procedures will vary from system to system and claim to claim, but it is the prison’s 7 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 8 549 U.S. at 218; see also Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 9 Considerable deference is owed to those who administer prison systems, and courts 10 recognize that “[w]hen an administrative process is susceptible of multiple reasonable 11 interpretations, Congress has determined that the inmate should err on the side of 12 exhaustion.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). In Ross, the Supreme Court 13 explained that administrative procedures may be functionally unavailable if “some 14 mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. 15 The Supreme Court concluded that the “available” remedies that must be exhausted are 16 procedures that are “capable of use to obtain some relief for the action complained of.” Id. 17 The Ninth Circuit has held that the particular circumstances of a prisoner’s case 18 must be considered when deciding whether administrative remedies were properly 19 exhausted. Fuqua v. Ryan, 890 F.3d 838, 850 (9th Cir. 2018) (citing Albino, 747 F.3d at 20 1172). In Fuqua, the plaintiff did not exhaust remedies through the prison’s standard 21 grievance process; however, the Ninth Circuit determined that he exhausted his 22 administrative remedies for his free-exercise claim through the prison’s disciplinary 23 process because he raised his religious beliefs as a defense to the disciplinary charge 24 against him and the prison’s policy stated that the disciplinary appeal process was the only 25 method for challenging disciplinary convictions. Id. at 847–48. The Ninth Circuit noted 26 that, “[w]ithout question, prevailing in his disciplinary appeal could have allowed [the 27 prisoner] to obtain the relief he sought because it would have resulted in the expungement 28 of his conviction and the resulting sanctions.” Id. at 848. Under those circumstances, the 1 Ninth Circuit did not “hesitate to conclude” that ADC’s expectation that the plaintiff would 2 exhaust his religious accommodation claim by pursuing a grievance pursuant to DO 802, 3 while simultaneously pursuing a DO 803 disciplinary appeal, was “precisely the sort of 4 ‘essentially unknowable’ procedure that the Ross Court had in mind.” Id. (quoting Ross, 5 136 S. Ct. at 1859.) 6 Here, like the plaintiff in Fuqua, Plaintiff “completed every step of the disciplinary 7 appeal process” and repeatedly requested accommodation for his disability. Id. at 850. 8 “There was nothing ambiguous” about Plaintiff’s request for accommodation, and 9 Defendant was “clearly on notice of the relief he sought.” Id. (citing Griffin, 557 F.3d at 10 112.) Thus, the Court concludes “the purposes of the PLRA exhaustion requirement have 11 been fully served.” Id. (quoting Reyes, 810 F.3d at 658). 12 In addition, it does not appear that prison officials directed Plaintiff to the standard 13 grievance procedure for his request for accommodation for drug testing. See id. at 846 14 (noting that ADC Department Orders provide that a prisoner will be redirected to the 15 disciplinary hearing procedure if he improperly initiates a grievance related to a 16 disciplinary charge, but that if the prisoner attempts to pursue a disciplinary appeal for a 17 matter more appropriately addressed by a standard grievance, the Department Orders do 18 not require prison officials to redirect the prisoner to Department Order 802); Brown, 422 19 F.3d at 937 (evidence regarding whether remedies are available include official directives 20 that explain the scope of the administrative review process; in addition, “information 21 provided to the prisoner . . ., such as in the response memoranda . . . is pertinent because it 22 informs our determination of whether relief was, as a practical matter, ‘available’”). 23 Accordingly, the Court finds Plaintiff has met his burden to show that he exhausted 24 administrative remedies or to “come forward with evidence showing that there is 25 something in his particular case that made the existing and generally available 26 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 27 Court will therefore deny Defendant’s Motion for Summary Judgment. 28 . . . . 1 V. Motion to Amend Complaint 2 In his Motion to Amend, Plaintiff requests that the Court grant him leave to amend 3 his Complaint. Plaintiff asserts that in November 2018, Plaintiff received 845 pages of 4 discovery, plus 124 pages of documents attached as exhibits to Defendant’s Statement of 5 Facts in Support of his Motion for Summary Judgment. Plaintiff states that after reviewing 6 the documents, the Court’s Orders, and the pleadings, Plaintiff seeks leave to amend the 7 original Complaint. Specifically, Plaintiff seeks leave to allege additional facts concerning 8 Director Ryan’s personal involvement in the deprivation of Plaintiff’s constitutional rights. 9 Plaintiff also seeks to amend Count One to add facts, allegations, and a statement of injuries 10 “conducive and reflective of an ADA cause of action.” 11 Plaintiff notes that leave to amendment should be “freely given,” and the Court must 12 consider factors such as bad faith, undue delay, prejudice to the opposing party, and futility 13 in determining whether to grant leave to amend. Plaintiff avers that he “can perceive no 14 prejudice” to Defendant Mattos or Director Ryan. Plaintiff contends that Mattos’s Motion 15 for Summary Judgment raises no issues on the merits, but rather seeks summary judgment 16 on the affirmative defense of failure to exhaust. Plaintiff states that he has not filed the 17 First Amended Complaint to avert or evade the speedy disposition of the Motion for 18 Summary Judgment. Plaintiff asserts that post-discovery motions to amend a complaint 19 are “routine” and argues that the exhibits attached to his Response to the Motion for 20 Summary Judgment and the “many medical related alterations reflected” in Count One of 21 the proposed First Amended Complaint show that Plaintiff “has used much information 22 gleaned from the discovery to correct errors in the operative facts of the cause of action in 23 the original Complaint.” 24 Finally, Plaintiff argues that his failure to exhaust his policy-related claims against 25 Director Ryan was “excusable” under § 1997e(a), and the exhaustion defect that was 26 present when he filed the original Complaint has been corrected, because he exhausted his 27 administrative remedies in the interim between the original Complaint and his request for 28 leave to amend. 1 Defendant Mattos states that, contrary to Plaintiff’s suggestion, a cause of action 2 must be exhausted before the case is commenced, not merely before the operative 3 complaint is filed. Defendant contends that if summary judgment is granted, Plaintiff’s 4 Motion to Amend “will likely be denied as futile because the claims are unexhausted.” 5 Defendant states that if summary judgment is not granted, Plaintiff’s Motion to Amend 6 “will likely be unopposed because Defendant understands the liberality with which such 7 motions are treated and can likely claim no prejudice given the early stage of this 8 litigation.” 9 Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend 10 its pleading only with the opposing party’s written consent or the Court’s leave. Fed. R. 11 Civ. P. 15(a). Rule 15(a) also provides that the Court “should freely give leave when justice 12 so requires.” Although the decision to grant or deny a motion to amend is within the 13 discretion of the district court, “Rule 15(a) declares that leave to amend ‘shall be freely 14 given when justice so requires’; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 15 178, 182 (1962). However, “[l]eave to amend need not be given if a complaint, as 16 amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 17 538 (9th Cir. 1989). 18 Courts must review motions to amend in light of the strong policy permitting 19 amendment. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). 20 Factors that may justify denying a motion to amend are undue delay, bad faith or dilatory 21 motive, futility of amendment, undue prejudice to the opposing party, and whether the 22 plaintiff has previously amended. Foman, 371 U.S. at 182; Bonin v. Calderon, 59 F.3d 23 815, 845 (9th Cir. 1995). 24 The Court finds that Plaintiff’s Motion to Amend was not unduly delayed and was 25 not made in bad faith or with dilatory motive. The Court further finds that Defendant, as 26 he acknowledges, will not suffer undue prejudice if leave to amend is granted, and 27 Defendant has indicated that he would not oppose amendment if summary judgment is 28 denied. In addition, Plaintiff has not previously amended his Complaint. Finally, the Court 1] does not find that amendment would necessarily be futile. For these reasons, the Court 2| will grant the Motion and direct the Clerk of Court to file the lodged Amended Complaint. 3 IT IS ORDERED: 4 (1) Defendant’s Motion for Summary Judgment (Doc. 16) is denied. 5 (2) Plaintiff’s Motion to Amend (Doc. 34) is granted. 6 (3) The Clerk of Court must file the lodged Amended Complaint (Doc. 34-1). 7 (4) Defendant must respond to the Amended Complaint within the time provided 8 | under Rule 15(a) of the Federal Rules of Civil Procedure. 9 Dated this 31st day of July, 2019. 10 11 ff 12 — Lt | yo) 13 Tf 4 Honorable Rostmiary Mafquez 14 United States District □□□□□□ 15 16 17 18 19 20 21 22 23 24 25 26 27 28