Opinion
No. CV 05-0106-PHX-DGC (CRP).
March 4, 2008
ORDER
Plaintiff Robert Joseph Benge filed this civil rights action under 42 U.S.C. § 1983 against Joseph Arpaio, Maricopa County Sheriff and Maricopa County Detectives Sanchez and Doe. (Doc. #1.) Doe has not been served. Sanchez moves to dismiss on the grounds that (1) Plaintiff failed to exhaust his administrative remedies, (2) Sanchez is entitled to qualified immunity, and (3) Plaintiff did not suffer a physical injury. (Doc. #34.) The matter is fully briefed. (Doc. ##35, 37.) The Court will grant the motion and dismiss the case.
Although Plaintiff filed his Complaint pro se, he is now represented by counsel. (Doc. #21.)
I. Background
Plaintiff's Complaint raised three counts. The Court dismissed Counts II and III and directed Sanchez to answer Count I, but did not order service on Doe. (Doc. #5.) In Count I, Plaintiff alleged that while at the Maricopa County Madison Street Jail he was subjected to a threat to his safety by Sanchez and Doe. Specifically, he claimed that in November 2003, while his pod was on lockdown, Officer Patterson gave Plaintiff a bottle of contact solution. Shortly thereafter, Detectives Sanchez and Doe asked to see Plaintiff, who went to meet them. Defendants told Plaintiff to get all of his contact solution. Plaintiff alleged that inmates had taken the bottle that Patterson gave Plaintiff, but Plaintiff handed Defendants another bottle of contact solution. Defendants examined it and asked where the "weed" was, telling Plaintiff that Defendants had created a decoy with balloons of parsley. Plaintiff told Defendants that the decoy had put him in danger, that he could not go back to general population, and he wanted to be in segregation. They refused Plaintiff's request, walked him back to his pod, and told Patterson to take everybody off lockdown. Plaintiff alleged that his reputation suffered and that he was harassed and then assaulted on two separate dates.
II. Exhaustion of Administrative Remedies
A. Legal Standard
Under the Prison Litigation Reform Act (PLRA), a prisoner may not bring a lawsuit with respect to prison conditions under § 1983 unless all available administrative remedies are exhausted. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). He must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo, 126 S. Ct. 2378, 2384 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001).
Exhaustion is an affirmative defense. Jones v. Bock, 127 S. Ct. 910, 919-21 (2007). Defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted).
B. Parties' Contentions
Sanchez contends that Plaintiff failed to exhaust his administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a). (Doc. #34 at 2-4.) In support, Sanchez submits the affidavit of Susan Fisher, a Sergeant assigned to the Inmate Hearing Unit. (Id., Fisher Aff. ¶ 1.) Fisher attests that her duties include receipt, processing, tracking, and storage of inmate grievances. (Id. ¶ 3.) The grievance procedure at the jail is a three-tiered system that includes: (1) the initial grievance and decision by a Bureau Hearing Officer; (2) the Institutional appeal; and (3) the External appeal. (Id. ¶ 5 Ex. A.) She asserts that the jail's grievance policy does not restrict the type of issues that an inmate may grieve. (Id. ¶ 4.) She further attests that according to the sheriff's office records, Plaintiff filed approximately 41 grievances relating to jail conditions but did not file a grievance relating to the issue of Sanchez jeopardizing his safety. (Id. ¶ 8.) Also attached to the motion is a copy of the Inmate Grievance Procedure, Policy DJ-3, and a sample Inmate Grievance Form. (Id., Exs. A, C.)
Plaintiff argues that Defendant fails to show that an administrative remedy was available; he asserts that the agency must show that it had authority to provide "some redress" for the alleged wrong, citing Booth, 532 U.S. at 736. (Doc. #35 at 4.) He argues that he was assaulted and sustained injuries and "[t]here was no administrative remedy that could redress this harm. After the injuries were sustained, there was no longer a threat to his safety so that [plaintiff] had no remedy through the Madison Street Jail grievance system." (Id.) Thus, Plaintiff had no duty to exhaust.
Sanchez replies that Plaintiff does not dispute that he filed no grievance relating to this incident — he simply ignored the grievance process. (Doc. #37 at 2.) He argues that it is untrue that there was no remedy through the grievance system. (Id. at 3.) Sanchez asserts that Plaintiff could have requested segregation from the general population and, if denied, could have filed a grievance, even before the first confrontation occurred. (Id.) Sanchez also argues that Plaintiff could have filed a grievance after the first confrontation and possibly prevented the second alleged incident. (Id. at 3-4.) Finally, Sanchez notes that in all of the cases relied on by Plaintiff, the inmate had filed an initial grievance. (Id. at 5.)
C. Analysis
In Booth, the Supreme Court reasoned that in enacting the PLRA, "Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible," noting that one exhausts processes, not forms of relief. 532 U.S. at 739. The Court held that an inmate must exhaust irrespective of the forms of relief sought and offered through the administrative process and specifically held that an inmate seeking only money damages must complete a prison administrative system that could provide some sort of relief but no money. Id. Booth also made clear that exhaustion is not required when no pertinent relief can be obtained through the internal process.Id. at 736. In Brown, 422 F.3d 926, the Ninth Circuit considered two cases where prisoners had used the California Department of Corrections grievance process by filing appeals, but did not pursue their appeals to the final level after receiving responses at the intermediate level. The court noted that the purpose of the PLRA exhaustion requirement is to afford prison officials "time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 936 (citingPorter, 534 U.S. at 525). Thus, the court held that a prisoner need not continue to exhaust additional levels of review if he has either received all "available" remedies at an intermediate level of review or "been reliably informed by an administrator that no remedies are available." Id. at 935. A defendant must prove the availability of a remedy. Relevant evidence of an available remedy includes regulations or official directives describing the scope of the administrative review process, documentary or testimonial evidence from relevant prison officials, and information provided to the prisoner. See id. at 937. To determine whether remedies were available, a court examines prison officials' responses to the inmate grievances and the actual grievance procedures. See id. at 937-43.
The Ninth Circuit noted that its position was consistent with the positions of the Second, Seventh, and Tenth Circuits, citingAbney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Dixon v. Page, 291 F.3d 485, 490-91 (7th Cir. 2002); and Ross v. Co. of Bernalillio, 365 F.3d 1181, 1187 (10th Cir. 2004) abrogated on other grounds by Jones, 127 S. Ct. at 925. Id. at 935. In determining if further administrative relief was unavailable, these courts examined, in light of the actual grievance procedures, the responses of the prison officials to the grievances filed. Abney, 380 F. 3d at 668-69 (once inmate received a favorable ruling on his request for properly fitted orthopedic footwear, and prison officials repeatedly failed to implement the favorable rulings, there was no further possibility of some relief); Dixon, 291 F. 3d at 490-91 (noting that although it was problematic to require a prisoner who has won his grievance seeking a transfer to further appeal to the Director when the transfer did not take place, § 1997e required the inmate to file such an appeal because there was still the possibility of some relief); Ross, 365 F. 3d at 1187 (holding that inmate complaining of dangerous conditions in the shower due to lack of shower mats had exhausted remedies where prison officials responded by providing mats and there were no other remedies available).
Sanchez offers evidence that (1) the jail has a grievance procedure that does not limit the issues that may be grieved, (2) Plaintiff filed no grievance on the issue of the threat to his safety, and (3) Plaintiff was aware of the grievance process, having filed numerous grievances in the past. Plaintiff does not dispute these assertions; he merely alleges that no remedy was available because he had already been assaulted. But this is insufficient under Brown to avoid the exhaustion requirement, and such an interpretation would negate the PLRA's purpose to allow officials time and opportunity to address the complaint prior to the filing of a lawsuit. See Porter, 534 U.S. at 525. Because Plaintiff never initiated the grievance process, he cannot show that he received all "available" remedies at an intermediate level of review or that he was "reliably informed by an administrator that no remedies are available." See Brown, 422 F. 3d at 935. Sanchez's motion will be granted and the claim dismissed without prejudice.
Because the Court has granted the motion to dismiss on the grounds of failure to exhaust, it need not consider the additional grounds raised by Sanchez. There are no remaining claims, and the Court will dismiss the action.
IT IS ORDERED:
(1) Defendant Sanchez's Motion to Dismiss (Doc. #34) is granted, and the claim is dismissed without prejudice for failure to exhaust remedies.
(2) This action is dismissed, and the Clerk of Court must enter judgment accordingly.