Opinion
Case No. C18-5475-RBL-TLF
12-12-2019
SHARNIKA ARMSTEAD, Plaintiff, v. WASHINGTON CORRECTIONS CENTER FOR WOMEN, et al., Defendants.
REPORT AND RECOMMENDATION Noted for January 3, 2020
This matter is before the Court on defendants' filing of a motion for summary judgment (Dkt. 18). Plaintiff has brought suit under 42 U.S.C. § 1983 against defendants Washington Corrections Center for Women (WCCW) as well as WCCW employees Keith C. Ebel, Cheryl Zurawski, and Deborah Jo Wofford. Dkt. 6. Specifically, plaintiff alleges violations of her Fourth and Thirteenth Amendment rights related to an alleged "assault" and "use of excessive force" by defendant Ebel, a prison guard, when plaintiff was a prisoner at WCCW. Id. Plaintiff appears to allege these same events constituted an actionable incident under the Prisoner Rape Elimination Act ("PREA") and that defendant Wofford, Superintendent at WCCW, did not handle plaintiff's PREA complaint according to Department of Corrections (DOC) policy. Id.
Plaintiff alleges defendant Zurawski, also a prison guard at WCCW, failed to perform tier checks after the incident and deliberately denied her access to sanitary napkins and toilet paper "as a result of her failure to act." Id. Plaintiff also alleges retaliation by "officers", that she has called mental health emergencies and not received treatment, and violations of the Washington State Public Records Act (RCW 42.56). Id.
This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set forth below, the undersigned recommends the Court grant defendants' motion for summary judgment (Dkt. 18). The Court should dismiss plaintiff's claims against defendant Washington Corrections Center for Women (WCCW) and her claims regarding alleged PREA violations with prejudice. The Court should dismiss plaintiff's claim regarding inadequate mental health care against the named defendants with prejudice pursuant to 28 U.S.C. § 1915A for failure to state a claim. The Court should dismiss plaintiff's remaining federal claims against the remaining defendants, Ebel, Zurawski, and Wofford, without prejudice for failure to exhaust administrative remedies. The Court should decline to exercise supplemental jurisdiction over plaintiff's remaining state law claim for violation of the Washington State Public Records Act (RCW 42.56) and dismiss that claim without prejudice. Finally, the Court should decline to issue a strike under 42 U.S.C. § 1915(g).
FACTUAL AND PROCEDURAL HISTORY
Plaintiff alleges in her amended complaint that on May 4, 2018, WCCW was on lockdown. Dkt. 6. She alleges she asked defendant Zurawski for sanitary napkins and toilet paper and defendant Zurawski gave her permission to obtain those items. Id. Plaintiff states that while she was retrieving those items, defendant Ebel entered her housing unit and "got in [her] face yelling, spitting, and using abusive language." Id. Plaintiff states she turned to defendant Zurawski and asked her to inform defendant Ebel she had been given permission to retrieve the items. Id. She states that defendant Ebel then "physically attacked [her] with both of his hands causing pain and swelling in [her] finger, wrist, arm, and bleeding in [her] lower lip." Id.
Plaintiff states on May 4, 2018, she filed an emergency grievance related to this incident. Plaintiff states she also called the PREA hotline and left a message on that date. Id. She indicates her grievance was deemed not to be an emergency and that after the PREA was reported no one followed up on the allegations. Id.
Plaintiff indicates that another inmate also filed a grievance related to this incident but offers not further information about that other grievance. Dkt. 6.
She states that on May 16, 2018, she called the PREA hotline again and left a message and that her PREA claim was then submitted electronically by Lieutenant Pershian. Id. On May 16, 2018, plaintiff states she received a kiosk message stating the alleged PREA violation on May 4, 2018, would not be investigated. Id. On May 21, 2018, plaintiff states she sent an Ombudsmen review request regarding this incident to the DOC Ombuds Office and on August 14, 2018, received a letter stating her complaint could not be accepted because she "did not exhaust the grievance process." Id. Specifically, the letter, attached to plaintiff's complaint, states "the Ombuds policy, DOC 140.500, requires that individuals exhaust all administrative appeals, such as all three levels of the grievance process, before submitting their complaints to this office." Dkt. 6, at 10.
Plaintiff states on May 21, 2018, she also sent a letter to the Attorney General of Washington State regarding the incident asking to press criminal charges against defendant Ebel for officer misconduct and assault. Dkt. 6. She states on July 18, 2018, she sent a Public Disclosure Request to the prison and to Olympia requesting kiosk messages, grievances, incident reports, and phone recorders. Id. She states on August 2, 2018, she also reported the incident to the PREA Reporting Office in Colorado. Id. She states on August 25, 2018, she asked Lieutenant Rio if she could call the police department and file a police incident report and that her request was denied. Id.
Plaintiff asserts that all PREA claims are sent to the superintendent (Deborah Jo Wofford) who is then responsible for the PREA investigation. Id. Plaintiff alleges defendant Wofford did not handle the PREA allegations in accordance with PREA DOC policy 490.850. Id. Plaintiff asserts "all grievances alleging sexual misconduct are to be forwarded" per that policy. Id. Plaintiff asserts she has exhausted the grievance process but also states she has "tried to take grievances to the next level after the PREA investigation and have been told that there is a 5 day timeline to do so." Id. She states she has been denied copies of incident reports and grievances. Id. She states she has called mental health emergencies and not received treatment. Id. She states she is being retaliated against by "officers" and nothing is being done about it. Id.
Plaintiff alleges her Fourth Amendment and Thirteenth Amendment rights have been violated as well as the Washington State Public Records Act, R.C.W. 42.56. Id. As relief she asks for $100,000.00, "lawyer fees, court fees, charges brought against K.C. Ebel for assault and excessive force, and all other defendants to be reassigned positions with no offender contact. She also asks that PREA not be handled in house and by an outside entity in an effort to stop retaliation against offenders." Id.
Defendants now move for summary judgment on several grounds including: that WCCW is not a proper defendant; there is no private right of action under the PREA; plaintiff failed to exhaust her administrative remedies; and none of defendants' actions violated plaintiff's constitutional or federal statutory rights (Dkt. 18). Plaintiff did not file a response to defendants' motion.
DISCUSSION
I. Standard of Review
Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"); see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
II. Claims Against State Agency - Washington Corrections Center for Women
Defendants move for summary judgment with respect to WCCW on the grounds that, as a state agency, it is not a proper defendant and is immune from claims for damages. Dkt. 18.
Plaintiff's § 1983 claims against WCCW are improper because it is a state agency and thus is not considered a "person" within the meaning of § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (holding that the term "person" as used in § 1983 did not include a State or State agency). Furthermore, under the Eleventh Amendment to the Constitution of the United States, neither a state nor a state agency may be sued in federal court without its consent. Pennhurst St. Sch. & Hosp. 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). While a state may waive its Eleventh Amendment immunity by removing an action to federal court, see e.g. Pittman v. Oregon, Employment Dep't, 509 F.3d 1065, 1071 (9th Cir. 2007), this is not a removal action.
Accordingly, the Court recommends defendants' motion with respect to defendant WCCW be granted and the claims against defendant WCCW be dismissed with prejudice.
III. PREA Claims
Plaintiff alleges defendant Wofford violated her civil rights by failing to follow DOC policy in handling her PREA claim. Dkt. 6. But there is no private cause of action available to plaintiff under the PREA.
The Court notes that plaintiff does not allege that defendant Wofford's actions violated any other specific constitutional or federal statutory right.
A private right of action "to enforce federal law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Similarly, to state a cognizable claim under 42 U.S.C. § 1983, "a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340 (1997), holding modified by Harz v. Borough of Spring Lake, 234 N.J. 317 (2018) (emphasis in original). The PREA "'authorizes the reporting of incidents of rape in prison, allocation of grants, and creation of a study commission,' but there is nothing in the PREA to indicate that it created a private right of action, [or that it is otherwise] enforceable under § 1983." Watkins v. Tuolumne County Jail, 2019 WL 95508, at *3 (E.D. Cal. Jan. 3, 2019) (quoting 42 U.S.C. §§ 15601-15609); Alverto v. Henderling, 2019 WL 174674 (W.D. Wash. Jan. 11, 2019); see also Hatcher v. Harrington, 2015 WL 474313, at *4-*5 (D. Haw. Feb. 5, 2015) (finding the plaintiff's claims that defendants failed to follow PREA guidelines and procedures failed because "[n]othing in the PREA explicitly or implicitly suggests that Congress intended to create a private right of action for inmates to sue prison officials for noncompliance with the Act," and although there appears to be no federal appellate decision addressing this issue, "district courts nationwide have found that PREA does not create a private cause of action that can be brought by an individual plaintiff") (citing cases).
Accordingly, to the extent plaintiff claims defendant Wofford violated her civil rights under the PREA by failing to properly process her PREA claim, defendants' motion for summary judgment should be granted and that claim dismissed with prejudice.
Plaintiff does not allege separate claims against defendants Zurawski and Ebel for violations of the PREA. However, to the extent plaintiff's complaint might be interpreted to raise claims under the PREA against Zurawski and Ebel, those claims should be dismissed with prejudice for the same reason discussed above.
IV. Retaliation and Inadequate Mental Health Care Claims
Plaintiff alleges generally that she has been "retaliated against by officers." Dkt. 6. But plaintiff fails to tie her conclusory claim of retaliation to any named defendant or other individual. Defendants move for summary judgment on the grounds that plaintiff fails to establish that they personally participated in any acts of retaliation. Dkt. 18.
To establish liability for a cause of action under Section 1983, a plaintiff must show the defendant, acting under color of state law, personally participated in the alleged deprivation of federal constitutional or statutory rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The plaintiff must allege the defendant, through his or her own individual actions, violated those rights. OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012). A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (emphasis in the original) (citation omitted).
Plaintiff has failed to respond to defendants' summary judgment motion and sets forth no facts in her complaint to show that any of the named defendants engaged in any retaliatory acts against her. Accordingly, as plaintiff fails to raise a genuine issue of material fact in opposition to defendants' motion, the motion should be granted and plaintiff's retaliation claims against the named defendants dismissed with prejudice.
Plaintiff also alleges generally that she was seen by mental health and requested follow up treatment and received none. Dkt. 6. However, plaintiff does not identify any individuals (defendants or otherwise) who were responsible for this alleged lack of medical care. Id. It is unclear whether plaintiff intends to raise this allegation of inadequate mental health care as a separate claim in her amended complaint and defendants do not specifically move for summary judgment with respect to this issue. But plaintiff was previously advised by this Court that in order to state a claim she must allege facts demonstrating the personal participation of each named defendant in causing the harm she alleges. Dkt. 5. Plaintiff was given an opportunity to file an amended complaint yet her claim regarding inadequate mental healthcare in her amended complaint is entirely conclusory and fails to establish the personal participation of any of the named defendants (or any other individual for that matter).
Because plaintiff was previously given an opportunity to amend her complaint, was advised that in order to state a claim she must state facts to show the personal participation of the defendants, and her mental health care claim remains deficient in this respect, it appears to the Court that further amendment would be futile. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended (Feb. 10, 2009) ("where the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, [t]he district court's discretion to deny leave to amend is particularly broad."); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.2010) (although pro se pleadings are to be liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief). Accordingly, the Court recommends that plaintiff's claim of inadequate mental healthcare be dismissed with prejudice against the named defendants pursuant to 28 U.S.C. 1915A for failure to state a claim upon which relief may be granted.
Title 28 U.S.C. § 1915A provides: (a) The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.
V. Exhaustion
As to plaintiff's remaining federal claims, defendants allege plaintiff failed to exhaust the available administrative remedies. Dkt. 18. Plaintiff has not filed a response to defendants' motion. Plaintiff alleges generally in her complaint that she has exhausted her remedies but also alleges she has "tried to take grievances to the next level" and has been told that "there is a 5 day timeline to do so." Dkt. 6. She also asserts generally that she has been "denied copies of incident reports and grievances." Id.
Before a prisoner may bring a civil rights action under 42 U.S.C. § 1983, she must first exhaust all available administrative remedies. Under the Prison Litigation Reform Act of 1995 ("PLRA"),
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). Exhaustion in cases covered by § 1997e(a) is mandatory. Booth v. Churner, 532 U.S. 731, 739 (2001). The mere fact a plaintiff has filed an initial grievance under a prison's grievance policy does not satisfy the PLRA exhaustion requirement; a plaintiff must exhaust all levels of an available grievance procedure before he can initiate litigation. See id. at 736-41; Porter v. Nussle, 534 U.S. 516, 524-25 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is still a prerequisite to suit. Booth, 532 U.S. at 741. If a claim is not exhausted, it must be dismissed. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
Failure to exhaust administrative remedies is properly brought as a summary judgment motion. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014). Once the defendant proves there was an available administrative remedy and the offender failed to exhaust the available remedy, the burden shifts to the plaintiff. The plaintiff must show there was something about his particular claim which made the "existing and generally available administrative remedies effectively unavailable to him." Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). "Exhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim." Albino, 747 F.3d at 1170.
Defendant's evidence shows inmates in the custody of the Washington State Department of Corrections ("DOC") may file administrative grievances pertaining to a wide range of issues related to an inmate's incarceration, including challenging DOC policies, rules and procedures, staff conduct, retaliatory conduct, access to medical care, and physical conditions of confinement. Dkt. 20, Bacetti Decl., ¶¶ 4. Under DOC policy, the grievance procedure consists of four levels of review. Id., ¶ 7.
• Level 0 - Complaint or informal level. The grievance coordinator at the prison receives a written complaint from an offender on an issue about which the offender wishes to pursue a formal grievance. At this complaint level, the grievance coordinator pursues informal resolution, returns the complaint to the offender for rewriting, returns the complaint to the offender requesting additional information, or accepts the complaint and processes it as a formal grievance. Routine and emergency complaints accepted as formal grievances begin at Level I. Complaints alleging staff misconduct, such as the Plaintiff's complaint in this case, are initiated at Level II.Baccetti Decl., ¶ 7.
• Level I - Grievances against policy, procedure, or other offenders, and grievances processed as emergencies. The local grievance coordinator is the respondent at this level.
• Level II - Appeal. Offenders may appeal Level I grievances to this level. Staff conduct grievances are also initiated at this level. All appeals and initial grievances received at Level II are investigated, with the prison superintendent being the respondent.
• Level III - Appeal. Offenders may appeal all Level II responses except emergency grievances to Department headquarters in Tumwater, where they are reinvestigated. Administrators are the respondents to a Level III grievance.
Here, the evidence shows plaintiff has filed eleven grievances during her time in DOC custody. Dkt. 20, Bacetti Decl., ¶ 9. Defendants present evidence that on May 4, 2018, plaintiff filed an Offender Complaint (grievance number 18655193) in connection with the May 4, 2018 incident and designated the complaint an "emergency." Id. at ¶ 10. In plaintiff's initial complaint she states, "C/o Z put a roll of toilet paper on the desk for me and I picked it up. While in the process of getting my five pads Sergeant Ebel came into CCU yelling at me. He told me to put my pads down because there was no officer. The officer was present however, I still complied. Then the sergeant reached for my arm and grabbed me." Id., Attachment 2.
Because plaintiff submitted her complaint through emergency channels after standard business hours it was directed to Shift Lieutenant J. Rio. Id., ¶ 13. Under the Offender Grievance Program, "emergency" complaints are those that involve a potentially serious threat to the life or health of an offender or staff member, relate to severe pain being suffered by the offender, or involve a potential threat to the orderly operation of a facility, and their resolution would be too late if handled through routine administrative or grievance channels. Id., ¶ 12. Because the allegations contained in plaintiff's initial Offender Complaint did not meet the criteria of an emergency grievance, plaintiff's "emergency" complaint was downgraded to a non-emergent initial grievance and returned to her. Id., ¶ 13.
Andrea Baccetti is the Grievance Coordinator for WCCW. Id., ¶ 2. Ms. Baccetti also received a copy of plaintiff's initial Offender Complaint and requested additional information from plaintiff in the form of a re-write request. Id., ¶ 14. Plaintiff then re-submitted her complaint as a non-emergent grievance on May 9, 2018. Id., ¶ 15. Plaintiff described the incident in her re-submitted complaint as follows:
On 5/04/18 the campus was shut down / on lock down. At about 12:30 noon CCU-west pod was escorted to the M.I. Kitchen to pick up lunch. Upon entrance to CCU I (ARMSTEAD) asked c/o Zorowski for toilet paper and pads. While CCU-west pod was still waiting outside CCU for an officer to bring the keys to open the main door to CCU, C/O Zorowski entered the west pod of CCU and sat a single roll of toilet paper on edge of the officers' desk. C/O Zorowski then came to the main entrance of CCU and told me to pick up my supplies upon entrance to west pod. While grabbing my pads Sgt. Ebel came into CCU irate. Sgt. Ebel gave me a directive to put down my pads since an officer was not present. Sgt. Ebel and C/O Zorowski were present. I followed the directive then Sgt. Ebel bear grabbed me by the arm. I told him to get his hands off me. He needs reprimanded for excessive force."See id., Attachment 3. Plaintiff's re-submitted complaint was determined to be an "Employee Conduct Grievance" under the grievance system (which automatically raises it to a Level II grievance) and an investigation was subsequently conducted. Id., ¶ 16.
Defendants acknowledge that separately from her initial Offender Complaint, on May 4, 2018, plaintiff also contacted the PREA Telephone Hotline, requesting an investigation of the same incident under the PREA. Dkt. 23, Wofford Decl., ¶ 8. In her voicemail plaintiff reported she had been "grabbed by Sgt. Ebel" earlier that day and was told the incident did not constitute an emergency after reporting the incident to prison staff. Id. Defendants submit evidence that on May 21, 2018, a response was issued to plaintiff's PREA complaint entitled "PREA Notification" advising plaintiff that her PREA claim had been reviewed and determined not to be addressable under PREA. Id., ¶ 9, and Attachment 2.
Defendants present evidence that DOC has several policies in place to prevent sexual relations or sexual contact between inmates, or between an inmate and a staff member. Id. This includes DOC Policy Number 490.800, "Prison Rape Elimination Procedures" which describes staff sexual misconduct as including any sexual act between an offender and an employee. Id., ¶ 3. According to defendants, DOC investigates and pursues disciplinary action against staff determined to be in violation of the policy. Id., ¶ 4. Defendants also present evidence that all offenders, DOC employees, DOC volunteers and contractors are informed on the law concerning sexual misconduct and the Department's policies prohibiting sexual misconduct between DOC employees, volunteers, contractors and offenders. Id., ¶ 5. As discussed in DOC Policy Number 490.800, the PREA Telephone Hotline is one of several means by which an offender may report sexual misconduct under the Prison Rape Elimination Act (PREA). Id., ¶ 7, and Attachment 1.
Defendants also submit evidence that offenders specifically undergo Prison Rape Elimination Act ("PREA") Orientation Training when they are processed into the prison. The orientation discusses the law, what constitutes sexual misconduct, what to do if they are a victim of misconduct or know of someone who is, and how to report it. Dkt. 23, Wofford Decl., ¶ 6.
Defendants present evidence that a written response to plaintiff's Level II offender complaint was issued on June 8, 2018. Id., ¶ 12. It advised plaintiff that the events reported in her complaint were clearly visible in the video recording of the encounter and that the video evidence did not support her contentions. Dkt. 20, Baccetti Decl., ¶ 16; Dkt. 23, Wofford Decl., ¶ 12. The response, which is signed by WCCW Superintendent Wofford, also advised plaintiff that she had a right to appeal the response by submitting a written appeal to the grievance coordinator within five working days from the date the response was received. Dkt. 20, Baccetti Decl., ¶ 17; Dkt. 23, Wofford Decl., ¶ 13. Defendants' evidence shows that plaintiff did not thereafter file an appeal. Dkt. 20, Baccetti Decl., ¶ 18; Dkt. 23, Wofford Decl., ¶ 13.
Plaintiff does attach a copy of a kite dated August 9, 2018, to her complaint which asks to take "grievance number 18659369 to the next level." Dkt. 6, at 16. However, defendants' evidence indicates that grievance number 18659369 corresponds to a separate grievance filed on July 10, 2018, not to the grievance addressing the incident on May 4, 2018, which is numbered 18655193. See Dkt. 20, Bacetti Decl., at Attachment 1. Even if plaintiff intended to appeal the May 4, 2018, grievance, the kite is dated August 9, 2018, well beyond the 5 days provided in the June 8, 2018 denial of plaintiff's Level II grievance. Dkt. 6, at 16. The Court also notes that the response to the kite dated August 13, 2018, indicated that it was also beyond the timeline to appeal the grievance plaintiff actually cited in the kite (number 18659369), stating plaintiff only had 5 working days to appeal. Id.
Defendants' evidence also shows that to the extent plaintiff seeks to raise separate claims with respect to defendant Zurawski's alleged failed to perform tier checks after the incident and the alleged denial of access to sanitary napkins and toilet paper, plaintiff has failed to grieve those claims entirely. Dkt. 20, Bacetti Decl., at 3-5. The grievance related to the May 4, 2018, incident discusses only defendant Ebel's alleged use of force and does not mention defendant Zurawski's failure to perform tier checks or that she denied plaintiff access to sanitary napkins and toilet paper. Id. And even if these claims against defendant Zurawski could be construed as properly raised in plaintiff's grievance, as noted above, plaintiff failed to timely appeal that grievance to the highest level.
The Court notes that defendants' evidence indicates that none of plaintiff's grievances were appealed to Level III. Dkt. 23, Bacetti Decl., at Attachment 1.
Defendants' evidence shows plaintiff failed to timely appeal the denial of her Level II grievance addressing the May 4, 2018, incident and thus failed to exhaust her available administrative remedies. Based on the evidence, the Court finds defendants carried the initial burden of showing the absence of exhaustion in this case. The undisputed evidence presented by defendants shows: 1) there was a grievance procedure in place at the time of the incident complained of in the complaint; 2) plaintiff was aware of the grievance process and participated in the grievance process while housed at WCCW; and 3) plaintiff did not complete the grievance process for these claims alleged in her complaint.
The burden now shifts to plaintiff, "who must show that there is something particular in her case that made the existing and generally available remedies effectively unavailable to [her] by 'showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'" Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). Acts by prison officials preventing the exhaustion of administrative remedies may make administrative remedies effectively unavailable. See Nunez v. Duncan, 591 F.2d 1217, 1224-25 (9th Cir. 2010). "The ultimate burden of proof, however, remains with the defendants," and the evidence must be viewed in the light most favorable to the plaintiff. Paramo, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172). The Supreme Court held there are three circumstances in which an administrative remedy is not capable of potential relief:
First, an administrative procedure is unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no ordinary prisoner can navigate it. And finally, a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation.Ross v. Blake, 136 S. Ct. 1850, 1853-1854 (2016).
But, "the unavailability of administrative remedies due to missed deadlines does not render such remedies 'exhausted' under the PLRA, nor does it excuse a failure to exhaust." Manley v. Rowley, 847 F.3d 705, 712 (9th Cir. 2017) (citing Ngo, 548 U.S. at 90-93); accord Nunez, 591 F.3d at 1229 ("[T]he exhaustion requirement is not satisfied when grievances are dismissed because prisoners missed deadlines or otherwise failed to comply with the grievance policy." (citing cases)); Marella, 568 F.3d at 1027 ("[Inmates are] required to 'complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.'" (quoting Ngo, 548 U.S. at 88)); Wilson v. Price, No. 215CV0866KJMEFBP, 2017 WL 5484063, at *6 (E.D. Cal. Nov. 15, 2017), appeal dismissed sub nom. Wilson v. De La Cruz, No. 18-15791, 2018 WL 3655856 (9th Cir. July 17, 2018). Moreover, "vague assertion[s]" that prison officials did not process an inmate's appeals, or "stopp[ed] them from being processed," are insufficient to create a genuine factual dispute regarding the availability of a remedy. Wilson v. Price, No. 215CV0866KJMEFBP, 2017 WL 5484063, at *6 (E.D. Cal. Nov. 15, 2017), appeal dismissed sub nom. Wilson v. De La Cruz, No. 18-15791, 2018 WL 3655856 (9th Cir. July 17, 2018) (quoting Tubach v. Lahimore, No. 1:10-cv-913 AWI SMS (PC), 2012 WL 4490792, at *3 (E.D. Cal. Sep. 28, 2012)).
Plaintiff did not file a response to defendants' motion. Plaintiff alleges generally in her complaint that she has "tried to take grievances to the next level after the PREA investigation and have been told there is a 5 day timeline to do so." Dkt. 6. But plaintiff was notified on May 21, 2018, that her PREA claim had been reviewed and determined not to be addressable under PREA, and her Level II grievance was denied on June 8, 2018. It appears that instead of appealing the June 8, 2018, denial of her Level II grievance within 5 days as required by grievance policy and as instructed in the Level II grievance denial form itself, plaintiff chose to continue to try to raise this issue as a PREA complaint to other authorities outside of the established grievance channels. Plaintiff's failure to meet the appeal deadline for her grievance or otherwise comply with the grievance policy does not render her claim exhausted or excuse her failure to exhaust her available remedies. See Nunez, 591 F.3d at 1229 ("[T]he exhaustion requirement is not satisfied when grievances are dismissed because prisoners missed deadlines or otherwise failed to comply with the grievance policy." (citing cases)).
Plaintiff also claims generally that she was "denied copies of incident reports and grievances" but fails to identify what incident reports or grievances she is referring to or when and by whom she was allegedly denied copies. Dkt. 6. These vague and conclusory assertions of staff interference in the grievance process are insufficient to raise a genuine issue of material fact as to the availability of the prison grievance procedure. As such, plaintiff has not shown the grievance process was unavailable to her.
See, e.g., Kidd v. Livingston, 463 Fed.Appx. 311, 313 (5th Cir. 2012) (per curiam) (conclusory assertions that prison officials did not process grievance "fail[ ] to create a genuine dispute as to [inmate's] exhaustion of this grievance" (citation omitted)); Jeffries v. Fields, No. CV 12-1351 R(JC), 2014 WL 994908, at *18 (C.D. Cal. Mar. 10, 2014) ("conclusory" assertion[s] that prison officials "obstructed the remedy process" and "tamper[ed]" with inmate's grievances are "are insufficient to demonstrate that any failure to exhaust was excused due to misconduct by prison officials that rendered further administrative remedies unavailable" (citations omitted)).
As the record shows plaintiff did not fully follow the proper grievance procedures available at WCCW, plaintiff has not overcome defendants' showing that plaintiff failed to exhaust administrative remedies available to her. Therefore, the Court concludes plaintiff has not exhausted available remedies regarding the remaining federal claims alleged in the complaint; those claims should be dismissed without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) overruled on other grounds by Albino, 747 F.3d at 1162 ("If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."); Carrea v. California, 551 F. App'x 368, 369 (9th Cir. 2014) (remanding for the entry of dismissal without prejudice because the proper remedy for non-exhaustion is dismissal without prejudice).
Accordingly, the Court recommends, with respect to plaintiff's remaining federal claims, that defendants' motion for summary judgment (Dkt. 18) be granted and those claims be dismissed without prejudice for failure to exhaust administrative remedies.
VI. Washington State Public Records Act (RCW 42.56)
Plaintiff also generally alleges violations of Revised Code of Washington (RCW) 42.56 although the factual basis for this claim is unclear from plaintiff's complaint. Dkt. 6. The Court should decline to exercise supplemental jurisdiction over this state law claim and dismiss it without prejudice.
A district court has discretion over whether to exercise supplemental jurisdiction over state law claims arising from the same set of operative facts that supports a federal claim. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009) (citing 28 U.S.C. §§ 1367(a), (c)). Ordinarily, when a district court dismisses "all claims independently qualifying for the exercise of federal jurisdiction," it will dismiss all related state claims, as well. Artis v. District of Columbia, 138 S.Ct. 594 (2018) (citing 28 U.S.C. § 1367(c)) (2018); see also Carlsbad Tech., 556 U.S. at 639-40; see Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 n. 3 (9th Cir.1997) (suggesting that a district court may, but need not, decide sua sponte whether to continue exercising supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) once all federal law claims have been dismissed).
Although the court is not required to dismiss the supplemental state law claims, "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, fairness, convenience, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130 (1966) ("Needless decisions of state law should be avoided [by federal courts] both as a matter of comity" and to promote "a surer-footed reading of applicable law.").
Because the Court is recommending dismissal of all of plaintiff's federal claims against defendants, the Court also recommends declining to exercise supplemental jurisdiction over plaintiff's state law claim and dismissing that claim without prejudice. Plaintiff is, of course, free to re-file that claim in state court, subject to the tolling provisions of 28 U.S.C. § 1367(d).
Title 28 U.S.C. § 1367(d) provides that when a federal court declines supplemental jurisdiction over a state-law claim, the limitations period for that claim "shall be tolled while the claim is pending" in federal court "and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." Thus, where section 1367(d) applies, the period during which a plaintiff's state-law claims were pending in federal court will not be subtracted from the applicable State limitations period.
VII. Defendants' Request for a "Strike" Under 42 U.S.C. § 1915(g)
Defendants request that the Court count plaintiff's action as a "strike" under 28 U.S.C. § 1915(g) because it is "obviously frivolous." Dkt. 18. Defendants also argue that plaintiff intentionally misled the Court in stating she had exhausted her administrative remedies.
28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the in forma pauperis provision] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."The dismissals described in this provision are commonly referred to as 'strikes.'" Harris v. Mangum, 863 F.3d 1133, 1139 (9th Cir. 2017); see, e.g., El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016).
The Court should decline to find this action frivolous and should not issue a strike in this case. There is insufficient evidence to demonstrate that the pro se plaintiff in this case intended to mislead the Court on the issue of exhaustion. Moreover, because the Court did not reach the merits of several of plaintiff's claims due to her failure to exhaust administrative remedies, it would be inappropriate under these circumstances for the Court to find the entire action frivolous
In Forma Pauperis Status on Appeal
The Court must also decide whether plaintiff's in forma pauperis status should continue on appeal. See 28 U.S.C. §1915(a)(3) ("an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith"). The Court must determine whether appeal is frivolous or malicious, or whether it fails to state a claim on which relief may be granted. See 28 U.S.C. §1915(e)(2)(B)(i)&(ii).
While the Court was not persuaded on the merits of several of plaintiff's claims and does not reach the merits of several others due to plaintiff's failure to exhaust her administrative remedies, there is no evidence that her appeal would be frivolous or taken in bad faith. Accordingly, the Court recommends that in forma pauperis status should continue on appeal.
VIII. Conclusion
For the above stated reasons, the undersigned recommends the Court GRANT defendants' motion for summary judgment (Dkt. 18). The Court should dismiss plaintiff's claims against defendant Washington Corrections Center for Women (WCCW) and her claims regarding alleged PREA violations WITH PREJUDICE. The Court should dismiss plaintiff's claim regarding inadequate mental health care against the named defendants WITH PREJUDICE pursuant to 28 U.S.C. § 1915A for failure to state a claim. The Court should dismiss plaintiff's remaining federal claims against the remaining defendants, Ebel, Zurawski, and Wofford, WITHOUT PREJUDICE for failure to exhaust administrative remedies. The Court should decline to exercise supplemental jurisdiction over plaintiff's remaining state law claim for violation of the Washington State Public Records Act (RCW 42.56) and dismiss that claim WITHOUT PREJUDICE. Finally, the Court should decline to issue a strike under 42 U.S.C. § 1915(g).
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); FRCP 6; FRCP 72(b). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating this time limitation, this matter shall be set for consideration on January 3, 2020, as noted in the caption.
Dated this 12th day of December, 2019.
/s/_________
Theresa L. Fricke
United States Magistrate Judge