Valentini 268586 v. Ryan

• Court: District Court, D. Arizona
• Decided: March 31, 2020
• Docket: 2:18-cv-04247
• Status: Unknown

Opinion

1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rick Wayne Valentini, No. CV 18-04247-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.

14 15 Plaintiff Rick Wayne Valentini, who is currently confined in Arizona State Prison 16 Complex (ASPC)-Eyman in Florence, Arizona, brought this civil rights action pursuant to 17 42 U.S.C. § 1983. (Doc. 1.) Defendants Erwin and Porter move for summary judgment, 18 and Plaintiff opposes.1 (Docs. 22, 26.) 19 I. Background 20 Upon screening Plaintiff’s Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a), 21 the Court determined that Plaintiff stated access-to-court claims against Defendants 22 Corrections Officer III Roland and Property Officer Jane Doe in Count Two and against 23 Sgt. John Porter and Legal Access Monitor Julia Erwin in Count Six. (Doc. 6.) The Court 24 directed Defendants Roland, Porter, and Erwin to answer and gave Plaintiff 120 days to 25 identify Defendant Doe and file a notice of substitution with her actual name. (Id.) The 26 Court dismissed the remaining claims and Defendants. (Id.) 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. 24.) 1 On March 6, 2020, Magistrate Judge Deborah Fine issued a Report and 2 Recommendation (R&R) recommending that Defendants Jane Doe and Roland be 3 dismissed for failure to substitute and/or serve. (Doc. 30.) Defendants Porter and Erwin 4 now move for summary judgment and argue that Plaintiff failed to exhaust the available 5 administrative remedies and that they did not deny Plaintiff access to the courts. (Doc. 22.) 6 II. Report and Recommendation 7 This Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 9 the district judge must review the magistrate judge’s findings and recommendations de 10 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 11 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 12 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review 13 of factual and legal issues is required if objections are made, ‘but not 14 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 15 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 16 [magistrate judge’s] recommendations to which the parties object”). District courts are not 17 required to conduct “any review at all . . . of any issue that is not the subject of 18 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 19 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those 20 portions of the [R&R] to which objection is made.”). 21 On March 6, 2020, the Magistrate Judge recommended dismissing Defendants 22 Roland and Jane Doe without prejudice for failure to serve. (Doc. 30.) Neither party filed 23 objections to the R&R, and the time to do so has expired. The Court is therefore not 24 obligated to review the R&R. See Reyna-Tapia, 328 F.3d at 1121 (“[t]he district judge 25 must determine de novo any part of the magistrate judge’s disposition that has been 26 properly objected to”). Even so, the Court has reviewed Judge Fine’s R&R and 27 incorporates and adopts it. Accordingly, Defendants Jane Doe and Roland are dismissed 28 from the action without prejudice for failure to serve. Because Defendants Doe and Roland 1 are the only Defendants remaining in Count Two, the Court will also dismiss Plaintiff’s 2 access-to-court claims against Defendants Doe and Roland in Count Two. 3 III. Summary Judgment Standard 4 A court must grant summary judgment “if the movant shows that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 6 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 7 movant bears the initial responsibility of presenting the basis for its motion and identifying 8 those portions of the record, together with affidavits, if any, that it believes demonstrate 9 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 10 If the movant fails to carry its initial burden of production, the nonmovant need not 11 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 12 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 13 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 14 contention is material, i.e., a fact that might affect the outcome of the suit under the 15 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 16 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 18 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 19 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 20 it must “come forward with specific facts showing that there is a genuine issue for trial.” 21 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 22 citation omitted); see Fed. R. Civ. P. 56(c)(1). 23 At summary judgment, the judge’s function is not to weigh the evidence and 24 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 25 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 26 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 27 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 28 . . . 1 IV. Exhaustion 2 A. Legal Standard 3 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 4 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 5 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 6 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 7 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 8 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 9 (2002), regardless of the type of relief offered through the administrative process, Booth v. 10 Churner, 532 U.S. 731, 741 (2001). 11 The defendant bears the initial burden to show that there was an available 12 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 13 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 14 demonstrate that applicable relief remained available in the grievance process). Once that 15 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 16 fact, exhausted administrative remedies or “come forward with evidence showing that there 17 is something in his particular case that made the existing and generally available 18 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 19 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 20 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 21 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 22 If summary judgment is denied, disputed factual questions relevant to exhaustion 23 should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 24 exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted 25 administrative remedies, that administrative remedies were not available, or that the failure 26 to exhaust administrative remedies should be excused, the case proceeds to the merits. Id. 27 at 1171. 28 . . . 1 B. Relevant Facts 2 1. Plaintiff’s Claim 3 In Count Six, Plaintiff alleges that on November 15, 2016, while he was housed in 4 the Santa Rita Yard at ASPC-Tucson, Plaintiff turned in his Motion for Review for the 5 Court of Appeals to the librarian for copying. (Doc. 1 at 16.) On November 17, 2016, 6 Defendant Porter led a group of correctional officers to Plaintiff’s cell to seize all of 7 Plaintiff’s legal paperwork and personal property, including all four copies of his Motion 8 for Review. (Id.) On November 18, 2016, Plaintiff received a redacted and blacked out 9 copy of the Motion for Review, in which Defendant Erwin had removed evidence from the 10 Motion and had blacked out other pages of the Motion. (Id.) Plaintiff’s six property boxes 11 were sent to Central Office on November 21, 2016, and Defendant Erwin inspected every 12 piece of paper in the box and removed significant portions of Plaintiff’s legal discovery 13 paperwork. (Id.) As a result, Plaintiff’s ability to represent himself in his criminal appeals 14 “was irreversibly damaged from Julia Erwin’s seizure and destruction of critical evidence 15 in both appeals.” (Id. at 16-17.) Erwin also removed critical evidence in order to obstruct 16 Plaintiff’s ability to prove issues in his “Writ of Habeas Corpus.” 17 2. Arizona Department of Corrections (ADC) Grievance Process 18 Department Order (“DO”) #802, Inmate Grievance Procedure, effective October 19 16, 2016, governs the ADC’s inmate grievance procedure and is the version that was in 20 effect when Plaintiff’s claim arose. (Doc. 23 (Defs.’ Statement of Facts) ¶ 1.)2 A written 21 copy of the grievance policy is available to prisoners at each prison unit’s Inmate Resource 22 Library, and prisoners also receive a written and oral explanation of the grievance policy 23 during intake and as part of the orientation process when they transfer to a new facility. 24 (Id. ¶ 5.) 25 26

27 2 Defendants did not provide a copy of DO 802 with their exhibits, but a copy of the effective version is available to the public at the ADC website. See 28 https://corrections.az.gov/sites/default/files/policies/800/0802_032519.pdf (last visited Mar. 27, 2020). 1 The grievance process for non-medical grievances is a four-step review process for 2 prisoners to seek resolution of issues they encounter while incarcerated. (Id. ¶ 8.) First, a 3 prisoner must attempt to solve his complaint through informal means by discussing the 4 issue with staff in the area most responsible for the complaint. (Id. ¶ 9.) 5 If the prisoner is unable to resolve his complaint informally, the second step of the 6 grievance process is for the prisoner to submit an Informal Complaint Resolution to the 7 unit CO III. (Id. ¶ 10.) If the prisoner is not satisfied by the CO III’s response, within five 8 workdays the prisoner may proceed to the third step of the grievance process and submit a 9 Formal Grievance to the Grievance Coordinator who will then log the Formal Grievance 10 and forward it to the Deputy Warden for a response. (Id. ¶¶ 12–13.) 11 If the prisoner is not satisfied by the Deputy Warden’s decision, within five 12 workdays the prisoner may proceed to the fourth and final step of the grievance process 13 and submit a Grievance Appeal to the Grievance Coordinator who will then log the 14 Grievance Appeal and forward it to the Central Office Grievance Appeals Officer for a 15 response. (Id. ¶¶ 14 –16.) The Appeals Officer will prepare a response and submit it to 16 the ADC Director for approval and signature. (Id. ¶ 16.) The Director’s decision is final. 17 (Id. ¶ 17.) 18 If a prisoner does not receive a timely response from the designated prison official 19 at any point during the grievance process, the prisoner may proceed to the next stage of the 20 grievance process the day after the response was due.3 21 3. Plaintiff’s Grievance History 22 Plaintiff was housed at the ASPC-Tucson, Santa Rita Unit from September 29, 2016 23 until March 30, 2017. (Id. ¶ 19.) On November 28, 2016, Plaintiff submitted an Informal 24 Complaint Resolution to CO III Millhoff in which he complained that on November 17, 25 2016, “ADOC” entered his cell and seized several boxes of his “legal discovery 26 paperwork” including legal correspondence between Plaintiff and his attorneys and family 27

28 3 See Inmate Grievance Procedure, DO 802 § 1.10.1, https://corrections.az.gov /sites/default/files/policies/800/0802_032519.pdf (last visited Mar. 27, 2020). 1 members, a “legal journal,” “federal documents,” and “state documents.” (Doc. 23-4 at 3 2 (Defs.’ Ex. 4).) Plaintiff demanded the return of his legal paperwork. (Id.) 3 On December 14, 2016, CO III Millhoff responded that: “As verbally confirmed by 4 yourself on 12/07/16 all authorized property has been returned to you. Items which you 5 are not authorized to possess per policy are held for you in a secure location on Santa Rita 6 Unit.” (Id. at 4.) 7 On February 6, 2017, Plaintiff submitted a Grievance Appeal in which he stated that 8 he submitted a Formal Grievance on January 12, 2017 regarding his confiscated legal 9 documents, but he never received a response. (Doc. 23-5 at 1 (Defs.’ Ex. 5).) Plaintiff 10 complained that the documents were “illegally and unconstitutionally seized” and “ha[d] 11 not been found.” (Id.) A note at the bottom of the Grievance Appeal indicates that it “was 12 returned unprocessed for being out of time frames. Grievance [was] due by 1/5/17, you 13 submitted it 2/6/17.” (Id.) 14 C. Discussion 15 Defendants have met their initial burden at summary judgment of showing that there 16 was an administrative remedy available to Plaintiff as outlined in DO 802 and that Plaintiff 17 did not complete this process with regard to his access-to-court claim against Defendants. 18 Accordingly, the burden shifts to Plaintiff to either show that he exhausted his threat-to- 19 safety claim or that the administrative remedy was effectively unavailable to him. Albino, 20 747 F.3d at 1172. The facts in the record do not support either finding. 21 In his response, Plaintiff asserts that he filed an Informal Complaint Resolution on 22 November 28, 2016 and that he “attempted verbal communication” with several prison 23 officials between November 28 and December 15, 2016. (Doc. 26 at 2.) But Plaintiff did 24 not submit any evidence, such as a signed declaration, to support this argument. Further, 25 even if Plaintiff did not receive CO III Millhoff’s December 14, 2016 Informal Complaint 26 Response, under the provisions of DO 802, Plaintiff was entitled to proceed to the next step 27 of the grievance process the day after Millhoff’s response was due, which would have been 28 January 5, 2017. Plaintiff claims that he attempted to submit two Formal Grievances on 1 January 9, 10, and 11, 2017, and he was “refused”; but these claims are not supported by 2 any record evidence, and even if they were taken as true, the grievances would have been 3 untimely under DO 802. (Id. at 3.) The only evidence Plaintiff submitted to support his 4 response to the Motion for Summary Judgment are copies of several grievance 5 documents—one Formal Grievance and five Grievances Appeals—that he contends show 6 he exhausted his claim. (Doc. 26 at 13–18.) But the quality of these copies is extremely 7 poor, and their contents are unintelligible, so the Court is unable to ascertain what issues 8 Plaintiff was grieving in these documents. (See id.) Moreover, the date on these documents 9 indicate that Plaintiff submitted the Formal Grievance and two of the Grievance Appeals 10 on February 6, 2017; one of the Grievance Appeals on February 13, 2017; and two of the 11 Grievance Appeals on March 7, 2017. (Id.) These were all submitted well outside of the 12 timeframes outlined in DO 802. 13 On this record, where Defendants have met their initial burden, and Plaintiff has not 14 created a material of fact that he exhausted his access-to-court claim in Count Six or that 15 the grievance process was not available to him, the Court will grant summary judgment to 16 Defendants on the issue of exhaustion and dismiss the action without prejudice. See Lira 17 v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (If a court grants summary judgment on 18 non-exhaustion grounds, dismissal is without prejudice). 19 IT IS ORDERED: 20 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 21 for Summary Judgment (Doc. 22). 22 (2) The Report and Recommendation (Doc. 30) is adopted, and Defendants Jane 23 Doe and Roland are dismissed from the action without prejudice for failure to serve. 24 (3) Plaintiff’s access-to-court claim in Count Two against Defendants Jane Doe 25 and Roland is dismissed without prejudice. 26 (4) Defendants Porter and Erwin’s Motion for Summary Judgment (Doc. 22) is 27 granted. Defendants Porter and Erwin and Plaintiff’s access-to-court claim in Count Six 28 are dismissed without prejudice for failure to exhaust administrative remedies. 1 (5) | There being no Defendants or claims remaining, the action is terminated, and 2| the Clerk of Court must enter judgment accordingly. 3 Dated this 31st day of March, 2020. 4 ° Michel T. Sihurde WMchack T. ginurde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28