Opinion
No. CV-02-1357-PHX-SRB.
February 16, 2006
ORDER
Pro se Plaintiff Michael S. McDonald, a prisoner in the custody of the Arizona Department of Corrections ("ADOC") filed this Section 1983 action, 42 U.S.C. § 1983, alleging that ADOC prison officials violated his Eighth Amendment rights by using excessive force and by exhibiting deliberate indifference to his medical needs. At issue are the following motions: Defendant's Motion to Dismiss due to Plaintiff's alleged failure to exhaust his administrative remedies prior to commencing this action (Doc. 66); Plaintiff's Motion to Strike certain statements in Defendant's Reply in Support of his Motion to Dismiss (Doc. 73); and Plaintiff's Motion to Strike the Declaration of Antonette Lee (Doc. 80).
The only remaining Defendant is Edwin Lao, and the only remaining cause of action concerns Lau's use of allegedly excessive force against Plaintiff.
I. BACKGROUND
The facts giving rise to Plaintiff's Complaint were fully set forth in the Court's Order (Doc. 57) ruling on Defendant's Motion for Summary Judgment (Doc. 42) and need not be reiterated here. The germane facts for the pending motions concern ADOC's inmate grievance procedure and Plaintiff's alleged attempts to comply with that procedure:
An inmate who wishes to grieve the behavior of an ADOC staff member must comply with the procedure set forth in Departmental Order ("D.O.") 802.12. Before filing a formal grievance, the inmate must attempt to resolve his complaint informally by submitting to his assigned C.O. III an Inmate Issue/Response Form within ten workdays of the action that caused the complaint. D.O. 802.08(1.1); 802.12(1.1.1). The C.O. III has a duty to investigate the complaint, and must notify the inmate by Issue/Response Form within ten days of receiving the complaint whether it can be informally resolved. D.O. 802.08(1.3.1-1.2.2). If the inmate is unsatisfied with the resolution, or if there has been no resolution, the inmate has ten days from his receipt of the Issue/Response form to file a formal grievance. D.O. 802.12(1.1.2). Grievances are logged by the Grievance Coordinator and forwarded to the Warden, Deputy Warden or Administrator, who have thirty days to review the grievance and respond. D.O. 802.12(1.1.5-1.1.6). The inmate may appeal to the ADOC Director, but must submit his appeal within ten days of receiving the response to his grievance. D.O. 802.12(1.2.1).
ADOC Departmental Order 802 is attached to Defendant's Motion to Dismiss as Attachment A.
A grievance is considered exhausted when the ADOC Director denies the appeal. D.O. 802.12(1.2.4). If prison officials fail to respond to a grievance within the time frames specified in the departmental order, the inmate is entitled to proceed to the next level of review. D.O. 802.07(1.2.4).
Plaintiff alleges that he was injured when Defendant grabbed his testicles on April 13, 2002. On May 15, 2002, well beyond the ten-day window for the filing of informal complaints, Plaintiff submitted an inmate letter in an attempt to informally resolve, among other issues, his complaint against Defendant. (Def.'s Mot. to Dismiss, Ex. C.) Plaintiff alleges that the delay in filing his informal complaint is attributable to the fact that prison officials did not supply him with the requisite forms. (Compl. at 4, ¶ 5; Doc. 15, Ex. A.)
C.O. III Lee investigated the informal complaint, and advised Plaintiff on the following day that the medical staff found "no evidence of injury" on his testicles. (Def.'s Mot. to Dismiss, Ex. D.)
Plaintiff then submitted a formal grievance on May 18, 2002. (Def.'s Mot. to Dismiss, Ex. E-1.) That grievance was returned to Plaintiff as "unprocessed" because he had not "documented [his] attempts to resolve the issue informally with [his] assigned CO III," and because he was "past the time frames (10 calendar days) for filing a grievance." (Def.'s Mot. to Dismiss, Ex. E.) Plaintiff did not appeal this response. He claims it is because "[t]here is no appeal for an unprocessed grievance. Without a tracking number, no appeal is accepted." (Pl.'s Resp. to Def.'s Mot. to Dismiss at 3.)
This statement apparently refers to the fact that, according to Defendant, Plaintiff failed to attach his rejected informal complaint to his grievance. Plaintiff maintains that he did attach his informal complaint to his grievance.
On July 18, 2002, Plaintiff filed a complaint with this Court naming, among others, Defendant Lao. The Complaint alleges that Defendant is liable under 42 U.S.C. § 1983 for violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. On June 6, 2003, Defendant filed a motion to dismiss, asserting that Plaintiff had failed to exhaust his administrative remedies prior to commencing this action (Doc. 11.) Plaintiff responded, and included an affidavit in which he stated that he "requested inmate letter forms, grievance forms, and medical forms from CB-3 correctional staff and was denied said forms." (Doc. 15, Ex. A.) Plaintiff also maintains that he requested and was denied writing implements. (Doc. 15, Ex. A.) In lieu of a reply, Defendant withdrew his motion to dismiss but "reserve[d] the right to re-urge this basis for dismissal if discovery supports that Plaintiff failed to exhaust the prison grievance procedures. At this time, however, Defendants are not able to evaluate and respond to the documents attached to Plaintiff's response to the Motion [to Dismiss]." (Doc. 19.)
Plaintiff made a similar contention in his Complaint. (Compl. at 4, ¶ 5.)
On August 10, 2005, Defendant filed a second motion to dismiss on the issue of exhaustion (Doc. 66). That motion, which is now pending, argues that Plaintiff failed to exhaust his administrative remedies because he did not appeal the denial of his grievance before filing his Complaint. (Def.'s Mot. to Dismiss at 5.) Plaintiff responded that any appeal would have necessarily been futile because "[t]here is no appeals process for an unprocessed grievance." (Pl.'s Resp. to Mot. to Dismiss at 3.) Defendant disagreed, replying that Plaintiff "could have resubmitted his grievance with the required information or he could have appealed the fact that his grievance returned unprocessed." (Def.'s Reply in Supp. of Mot. to Dismiss, at 2.) Defendant also asserted that "McDonald could have obtained some remedy from the Warden or Deputy Warden and/or from the ADC Director by appealing the Grievance Coordinator's response." (Def.'s Reply in Supp. of Mot. to Dismiss, at 2 n. 3) (emphasis in original).
Plaintiff filed a motion to strike the statements in Defendant's reply that Plaintiff could have appealed the fact that his grievance was returned unprocessed. (Doc. 73.) Defendant responded by voluntarily withdrawing that statement, as well as the statement that Plaintiff could have obtained some remedy by appealing the response. Defendant stood by his argument that if Plaintiff had re-submitted his grievance with the informal complaint that he allegedly forgot to include with the initial submission, he could have obtained "some remedy." Defendant also contends that if the re-submission included an explanation as to why his informal complaint was untimely, "the Grievance Coordinator would have further investigated his grievance." (Def.'s Resp. to Pl.'s Mot. to Strike Statements in Def.'s Reply at 2.) In support of that argument, Defendant attached to his response a declaration by Lee, Plaintiff's then-Grievance Coordinator and C.O. III who had returned his grievance as unprocessed. (Def.'s Resp. to Pl.'s Mot. to Strike Statements in Def.'s Reply, Ex. 2 ("Lee Declaration").) Lee states that if Plaintiff had re-submitted his grievance with both the informal complaint attached and an explanation as to why his informal complaint had not been submitted within ten days of the alleged assault, she "would have reviewed the grievance more carefully to determine if he had a valid reason for being out of time frames." (Lee Declaration at 2.)
Plaintiff replied, and also filed a motion to strike Lee's declaration. (Doc. 80.) It is not a true motion to strike, as it simply takes issue with the factual statements in Lee's declaration. For instance, Plaintiff contends that, despite Lee's statements to the contrary, he did attach his informal complaint to his grievance, and even if he had not, Lee herself had reviewed and signed the informal complaint two days before receiving the grievance. Plaintiff also points out that when Lee returned Plaintiff's grievance as unprocessed, she violated D.O. 802.12(1.1.4), which requires her to include with the denial "instruction for proper completion." According to Plaintiff, if Lee had really wanted Plaintiff to re-submit his grievance with the informal complaint attached, she should have said so when she returned the grievance to him.
II. LEGAL STANDARDS AND ANALYSIS
A. Plaintiff's Motions to Strike
Both motions to strike are denied. The motion to strike certain statements in Defendant's reply in support of his motion to dismiss simply expresses Plaintiff's disagreement with Defendant's arguments. That is not a proper basis for a motion to strike. Similarly, the motion to strike Lee's declaration does nothing more than take issue with factual assertions in that declaration. That is also not a proper basis for a motion to strike.
Federal Rule of Civil Procedure 12(f) authorizes courts to strike from any pleading "any redundant, immaterial, impertinent, or scandalous matter."
B. Timing
This lawsuit alleges that Plaintiff was a victim of Defendant's excessive force. Those allegations may or may not be true, but at a minimum, Plaintiff has been victimized by Defendant's dilatory litigation tactics.
This simple case was filed on July 18, 2002, over three and a half years ago. The original scheduling order imposed a dispositive motion deadline of August 29, 2003. Defendant filed its first motion to dismiss on June 6, 2003 and also asked for, and received, a stay of discovery. Defendant withdrew his motion to dismiss on July 10, 2003, a new scheduling order was entered on September 8, 2003, re-setting the dispositive motion deadline to May 14, 2004. On May 14, 2004, Defendant asked that the dispositive motion deadline be pushed back one month, to June 14, 2004, and his request was granted. On the last possible day to file a dispositive motion, Defendant did so, a motion for summary judgment. Defendant asked for and received another extension, this time to file a reply in support of his motion for summary judgment. The motion for summary judgment was denied in part, and yet again, Defendant asked for an extension, this time of one-hundred twenty days to file the joint pretrial statement. That was not enough, and Defendant asked for, and received, a further sixty day extension.
Glaringly absent from this string of extensions is a request to file a dispositive motion after June 14, 2004. Apparently, Defendant felt that he did not need permission to file such a motion, because he did file one without permission, about fifteen months after the dispositive motion deadline had passed.
But it does not end there. The Court is unaware of a case, and Defendant has not pointed out any, where a defendant has been permitted to file a motion to dismiss on the issue of exhaustion more than six months after a motion for summary judgment. Courts are generally hesitant to allow exhaustion issues to be raised even at the summary judgment phase, but do so when there has not been an allegation of prejudice. See Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005) (citations omitted) (citing Paine v. City of Lompoc, 265 F.3d 975, 981 n. 1 (9th Cir. 2001)). Here, Plaintiff has correctly alleged that he has been prejudiced by this motion's tardiness.
Next, when Defendant learned of the basis for Plaintiff's opposition to the original motion to dismiss, Defendant withdrew the motion because he needed to conduct more discovery to adequately respond. Defendant promised the Court that he would re-urge the motion to dismiss only if discovery supported it. Discovery did not support it, as Defendant's pending motion to dismiss does not rely on any facts obtained in discovery. Moreover, even if Defendant had somehow obtained an affidavit from the guards that they had not withheld the grievance forms from Plaintiff, such an affidavit would have been insufficient to overcome at that stage of the litigation Plaintiff's affidavit concerning what the guards had allegedly done. In other words, even at the time that Defendant withdrew his motion, it appears impossible that discovery could have yielded evidence that would have supported a dismissal for failure to exhaust.
The delay is also needless because there is no fathomable reason why, if Defendant wished to press the exhaustion issue, he could not have at least attempted to do so in his motion for summary judgment. By that point, the discovery deadline had well passed. And finally, as will be discussed below, the delay is especially needless because the motion is baseless.
C. Exhaustion
Section 1997e of the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e, provides that, "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." (emphasis added).
"[A] remedy that prison officials prevent a prisoner from utilizing is not an `available' remedy under § 1997e(a)." Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (citations and some internal punctuation omitted). See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (denying motion to dismiss for failure to exhaust where prison officials refused to provide inmate with necessary grievance forms, and as such, finding that the inmate lacked "available" administrative remedies); O'Connor v. Featherston, 2002 WL 818085, at *1-2 (S.D.N.Y. April 29, 2002) (noting that "courts have held that an inmate may nonetheless defeat a motion to dismiss even when the requirements of administrative remedies have not technically been exhausted where . . . it is alleged that corrections officers failed to file inmate's grievances or otherwise impeded or prevented his efforts") (citations omitted). See, e.g., Johnson v. Wackenhut Corrs. Corp., 130 Fed.Appx. 947, 950 (10th Cir. 2005) (acknowledging that "courts have held that refusing a prisoner grievance forms could raise an inference that the prisoner has exhausted `available' administrative remedies"); Vega v. U.S. Dep't of Justice, 2005 WL 2931841, at *2 (M.D. Pa. Nov. 4, 2005) (acknowledging the rule that where prison officials "mislead" or "otherwise prevent" an inmate from filing a timely grievance, inmate may be justified in "not complying with administrative procedural requirements") (citing Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002)); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001). Cf. Frank v. Days, 322 F.3d 863, 867 (5th Cir. 2003) (holding that where injury prevented inmate from filing his grievance in a timely manner, action could not be dismissed due to failure to exhaust, because, in light of the inmate's injury, no remedies were "available" to him).
One way that prison officials can prevent an inmate from utilizing a remedy is by denying him access to the requisite grievance forms until the window for filing grievances has passed. Miller, 247 F.3d at 739-40 (denying motion to dismiss for failure to exhaust where inmate had attempted to obtain administrative forms for filing a grievance but prison officials had refused to respond); Mitchell, 318 F.3d at 529 (citing Miller, 247 F.3d at 740); O'Connor, 2002 WL 818085, at *1-2. See also Johnson, 130 Fed.Appx. at 950.
In those situations, an inmate's administrative remedies can be considered exhausted "without his claims being denied at the highest level of administrative review specified by the relevant prison policies." Davis v. Arpaio, 2006 WL 269964, at *2 (D. Ariz. Jan. 31, 1996) (citing Mitchell, 318 F.3d at 529; Miller, 247 F.3d ay 740). See also Adkins v. Arpaio, 2006 WL 269965, at *2 (D. Ariz. Jan. 31, 2006) (citations omitted); Cordova v. Arpaio, 2005 WL 3560621, at *1 (D. Ariz. Dec. 29, 2005); Neese v. Arpaio, 397 F. Supp. 2d 1178, 1183 (D. Ariz. Nov. 9, 2005). See, e.g., Henderson v. Macias, 2005 WL 2709523, at *3 (E.D. Cal. Oct. 20, 2005) (holding that "exhaustion occurs when prison officials fail to respond to a grievance within the policy time limits," and citing supporting cases from the Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits) (citations omitted); Ellis v. Cambra, 2005 WL 2105039, at *4 (E.D. Cal. Aug. 30, 2005) (citations omitted); Rowe v. Corcoran State Prison, 2005 WL 1344379 (E.D. Cal. May 27, 2005).
Here, Plaintiff has alleged that despite numerous requests, prison officials refused to provide him with the forms used to initiate the grievance process until the ten-day window for timely filing such grievances had passed. (Compl. at 4, ¶ 5; Doc. 15, Ex. A; Pl.'s Resp. to Def.'s Mot. to Dismiss at 3-4; Pl.'s Resp. to Def.'s Notice of Supplemental Authority at 2; Pl.'s Mot. to Strike Decl. of Antonette Lee at 2.) Defendant provides no evidence or argument to the contrary. Accordingly, because it is uncontested that prison officials denied Plaintiff timely access to all available remedies, it cannot be said that he failed to exhaust "available" remedies.
Defendant argues that even assuming prison officials impeded Plaintiff's access to the grievance forms, Plaintiff's case should still be dismissed because he failed to appeal the denial of his grievance. This argument is rejected in light of the above authority and because even if Plaintiff had appealed, it was not possible for him to succeed, or for prison officials to take any action on Plaintiff's grievance. See Booth v. Churner, 532 U.S. 731, 736, 121 S. Ct. 1819, 1822-1823 n. 1 (2001) (implicitly acknowledging that no remedy is "available" where "the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint" because "without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust."); Brown v. Valoff, 422 F.3d 926, 929 (9th Cir. 2005) ("[T]here can be no `absence of exhaustion' unless some relief remains available") (citing Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)). D.O. 802 is unequivocal on this point: "Failure to submit [an informal complaint] within ten working days of the action that caused the complaint shall result in the inmate's forfeiture of the opportunity to pursue a formal grievance through the Department's Inmate Grievance system." D.O. 802.08(1.1.1) (emphasis added). There is no provision in D.O. 802 that permits prison officials to consider a grievance if the informal complaint is untimely. See Brown, 422 F.3d at 926 (noting that "requiring entirely pointless exhaustion, when no possible relief is available, is more likely to inflame than `mollify passions'") (quoting Booth, 532 U.S. at 737, 121 S. Ct. at 1825) (emphasis in Brown).
Defendant disputes the fact that Plaintiff had no remedy available to him. In his response to Plaintiff's motion to strike certain statements in Defendant's reply, Defendant states that Plaintiff "could have obtained some remedy if he had resubmitted his grievance with the required information." (Def.'s Resp. to Pl.'s Mot. to Strike Statements in Def.'s Reply in Supp. of Mot. to Dismiss at 2.) Not so. Had Plaintiff submitted the "required information," which was apparently a copy of the informal complaint, that submission would not have affected the second reason stated in the response for denying Plaintiff's grievance: the fact that his informal complaint was filed more than ten days after the alleged assault. Even though Lee's declaration states that if Plaintiff had re-submitted his grievance with the informal complaint attached, she "would have investigated the matter further," that statement is inconsistent with her duty to comply with D.O. 802, which does not provide any prison official with the authority to investigate untimely informal complaints. Also, despite faulting Plaintiff for not re-submitting his grievance, Lee violated D.O. 802.12(1.1.4), which requires her to return unprocessed grievances "with instruction for proper completion."
As a final note, the Court does not believe it is necessary to withhold ruling on this motion until the United States Supreme Court renders its decision in the case of Ngo v. Woodford, 2005 WL 3027720 (Nov. 14, 2005), which presents the question, answered in the affirmative by the Ninth Circuit, 403 F.3d at 620, whether "a prisoner satisf[ies] the Prison Litigation Reform Act's administrative exhaustion requirement by filing an untimely or otherwise procedurally defective administrative appeal[.]" While the inmate in Ngo, like Plaintiff, failed to file a timely informal complaint, there is no allegation in Ngo that the reason for the delay was attributable to factors outside of his control, such as prison guards actively impeding inmate access to the grievance forms. As such, the Court believes that however the Supreme Court may rule in Ngo, it would not have an impact on the present action.
While the untimely grievance in Ngo is referred to as an "appeal," it is procedurally and substantively equivalent to the informal complaint that ADOC inmates are required to file in order to commence the inmate grievance process.
IT IS ORDERED denying Defendant Lao's Motion to Dismiss (Doc. 66).
IT IS FURTHER ORDERED denying Plaintiff's Motion to Strike certain statements in Defendant's Reply in Support of his Motion to Dismiss (Doc. 73).
IT IS FURTHER ORDERED denying Plaintiff's Motion to Strike the Declaration of Antoinette Lee (Doc. 80).
IT IS FURTHER ORDERED that the Joint Proposed Pretrial Order is due in thirty days. No extensions will be given. Defendant has the responsibility to communicate with Plaintiff regarding the preparation of that Order.