Opinion
6:18-cv-00103-YY
03-10-2023
BRADLEY W. MONICAL, Plaintiff, v. MARION COUNTY, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Bradley W. Monical is currently incarcerated at the Oregon State Penitentiary and brought this civil rights action pursuant to 42 U.S.C. § 1983 for constitutional violations that allegedly occurred during his incarceration at the Marion County Jail (“MCJ”) between December 16, 2015, and November 23, 2016. See Third Am. Compl. 17, ECF 58; Davis Decl. ¶ 4, ECF 134. Defendants are Marion County, Sheriff Jason Myers (retired), Jail Commander Tad Larson, Deputy Straus, Deputy Dunnbarr, Deputy Frieze, Deputy McGowan, Deputy Knospe, Jail Nurse Cindy Gage (“County Defendants”), and Keefe Commissary Network LLC (“Keefe Commissary”). Currently pending is plaintiff's Motion for Leave to File Fourth Amended Complaint. ECF 241. That motion should be denied because, as explained below, plaintiff's proposed amendments to the complaint are futile.
I. Background
Plaintiff alleges that while he was at MCJ, the County Defendants denied him access to the law library, did not distribute shoes for exercise and did not provide adequate exercise times, and that the shoes the County Defendants did distribute were inadequate and caused him to slip and fall on some stairs. Third Am. Compl. 16-30, ECF 58. Plaintiff also alleges that the County Defendants provided inadequate medical care for the injuries he suffered from the fall, and that the County Defendants failed to protect him from an assault. Id. at 30-37. Finally, plaintiff alleges that the County Defendants wrongly prevented him from communicating with his children, and that defendant Keefe Commissary and the County Defendants violated his First Amendment rights by charging too much for certain postage. Id. at 37-42.
All parties filed motions for summary judgment. Pl. Mot. Partial Summ. J., ECF 122; Keefe Mot. Summ. J., ECF 136; County Defs. Mot. Summ. J., ECF 137. The Findings and Recommendations entered on September 12, 2022, recommend that plaintiff's claims should be dismissed without prejudice for failure to properly exhaust the available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). ECF 205. The primary basis for that recommendation is that plaintiff failed to file a grievance for most of the claims he asserts in the present suit, and that plaintiff failed to establish his failure to exhaust should be excused because the grievance procedure in place at MCJ at the relevant time was rendered unavailable to him. Id. at 28. The one claim for which plaintiff did file a grievance-in which he alleged that the County Defendants violated his First Amendment right to freedom of association by wrongly enforcing a “no contact” order regarding his children-was not fully exhausted because plaintiff failed to complete the final step in the administrative process, which requires writing a separate appeal to the jail commander. Id.
As part of the process used to resolve the parties' cross-motions for summary judgment, an evidentiary hearing was held on June 7, 2022, on the question of whether the grievance procedure was unavailable to plaintiff. ECF 200. At the hearing, testimony was elicited that the grievance procedure described in the MCJ Inmate Handbook at the relevant time did not specify a deadline by which an inmate had to file a grievance to timely start the administrative process. In the time after that hearing and after the Findings and Recommendations were entered, plaintiff has attempted to administratively exhaust the claims brought in this suit based on the testimony regarding the lack of a deadline for inmates to initiate the grievance process at MCJ. On September 21, 2022, plaintiff wrote a letter to the Marion County Jail Commander in which he requested a final decision from the jail commander on his grievance regarding contact with his children and on another grievance related to postage rates. Monical Decl. Ex. 2 at 1-2, ECF 242. In a letter dated October 16, 2022, plaintiff again wrote to the jail commander and requested grievance forms so he could start the administrative process on his other claims in this suit. Id., Ex. 4 at 2-4, ECF 242.
The jail commander wrote back to plaintiff in two essentially identical letters dated October 17, 2022. Id., Ex. 6 at 1-2, ECF 242. The jail commander wrote that the “policy on grievances in effect at the time” provided that “any grievances being processed are terminated and deemed resolved” when an inmate is released from MCJ's custody. Id. Thus, the jail commander wrote, the grievances plaintiff submitted were “terminated upon [plaintiff's] release” from MCJ on November 23, 2016. Id. Enclosed with the letters was a copy of Marion County Sheriff's Office Policy 3520 for Inmate Grievances. Id., Ex. 7 at 4, ECF 242.
With this new information, plaintiff has made several attempts to circumvent the Findings and Recommendations review process or to rehabilitate the problems with his current claims identified in the Findings and Recommendations. First, plaintiff moved to stay the order referring the Findings & Recommendations to the district judge so that plaintiff could attempt to bring new grievances or complete the grievance process at MCJ. ECF 218. That motion was denied because it is well-established Ninth Circuit law that the exhaustion required by the PLRA must be completed prior to filing suit. Order (Nov. 1, 2022) ECF 230; Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice ‘when there is no presuit exhaustion,' even if there is exhaustion while suit is pending.”) (quoting McKinneyv. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002)).
Recent Ninth Circuit case law has seemed to open the door for inmates to satisfy the exhaustion requirement after initiating a lawsuit in federal court. Saddozai v. Davis, 35 F.4th 705, 708 (9th Cir. 2022) (“A prisoner who has fully complied with the PLRA's exhaustion requirement need not file an entirely new federal case simply because he had not exhausted when he filed his original federal complaint.”). Under Saddozai, a prisoner who files an original complaint before exhausting administrative remedies and then files an amended complaint after completing the exhaustion process is not subject to dismissal for lack of exhaustion. See id. at 708-10. But here, at the time plaintiff moved for a stay, the operative complaint was the Third Amended Complaint. ECF 58. Thus, a stay to allow plaintiff to complete exhaustion during the pendency of the lawsuit on that operative complaint was not warranted because the controlling question was whether plaintiff had exhausted available administrative remedies by March 26, 2020, which was the date plaintiff's Third Amended Complaint was deemed filed. Spence v. Kaur, No. 2:16-cv-1828 TLN KJN P, 2022 WL 2705216, at *7 (E.D. Cal. July 12, 2022), report and recommendation adopted, No. 2:16-cv-1828 TLN KJN, 2022 WL 4357978 (E.D. Cal. Sept. 20, 2022) (“Thus, in light of Saddozai, the issue of exhaustion . . . turns on whether plaintiff exhausted available administrative remedies by . . . the date his third amended complaint was deemed filed.”).
Now, plaintiff has renewed the effort to exhaust his claims by bringing the currently pending motion for leave to file a fourth amended complaint; these new allegations detail his recent efforts to either initiate or complete the grievance process at MCJ. ECF 241.
II. Discussion
Rule 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” FED. R. CIV. P. 15(a)(2). “The court should freely give leave [to amend] when justice requires.” Id. The discretion whether to allow leave to amend is guided by the underlying purpose of Rule 15(a), which is “to facilitate decision on the merits, rather than on the pleadings or technicalities.” Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (citation omitted). Thus, leave to amend is to be granted with “extreme liberality.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted).
However, leave to amend is not automatically granted. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave may be denied “due to undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.” Carvalho v. EquifaxInfo. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (simplified). Prejudice is the most important factor. Eminence Capital, 316 F.3d at 1052. Futility may support denial of a motion to amend if it is clear that the pleading, as amended, is subject to dismissal and cannot be cured by amendment. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (citations omitted).
Plaintiff's motion for leave to file a fourth amended complaint some six years after the alleged incidents occurred are untimely and not permitted by the inmate grievance policy in place at MCJ during the relevant time; therefore, the proposed amendments are futile. The grievance policy described in the MCJ Inmate Handbook states that “[a]ny inmate at the Marion County Jail may file a grievance in an attempt to resolve issues and disputes.” Monical Decl. Ex 10 at 13, ECF 242. At the time plaintiff that attempted to initiate the MCJ grievance procedure in 2022, plaintiff was incarcerated at the Oregon State Prison. Third Am. Compl. 2, ECF 58. Thus, plaintiff was not an “inmate at the Marion County Jail” who could avail himself of the MCJ grievance procedure in 2022 for incidents that occurred during his incarceration at MCJ between December 16, 2015, and November 23, 2016. Monical Decl. Ex 10 at 13, ECF 242.
Moreover, the same Marion County Sheriff's Office Policy 3520 for Inmate Grievances upon which plaintiff relies to assert that his unfiled grievances were “deemed resolved” upon his transfer from MCJ in 2016 states that “inmates cannot grieve issues from previous incarcerations,” and requires that inmates “file grievances within 90 days of the issue arising or by the inmate;s release date, whichever is sooner.” Monical Decl. Ex. 7 at 2, 4, ECF 242; see also Mot. Leave 2, ECF 241. Thus, plaintiff's attempt to initiate the grievance procedure now is untimely.
Even if the one current claim that plaintiff did attempt to grieve while incarcerated at MCJ-i.e., his First Amendment claim regarding contact with his children-could be favorably construed as being “deemed exhausted” by way of Policy 3520 when plaintiff was released from MCJ custody in November of 2016, the claim would still fail because the County Defendants had a legitimate penological reason for temporarily limiting plaintiff's contact with his children. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
As a general matter, the Constitution protects “certain kinds of highly personal relationships,” including “association among members of an immediate family and association between grandchildren and grandparents.” Id. at 131 (citations omitted). But “[m]any of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.” Id. “An inmate does not retain rights inconsistent with proper incarceration,” and the “freedom of association is among the rights least compatible with incarceration.” Id. While incarceration does not entirely terminate an inmate's right to association, the scope of an inmate's associational rights is not clear. Madrid v. H. Anglea, No. 1:19-cv-01456-JLT (PC), 2020 WL 1689709, at *3 (E.D. Cal. Apr. 7, 2020); see also White v. Pazin, No. 1:12-cv-00917-BAM (PC), 2016 WL 6124234, at *6-11 (E.D. Cal. Oct. 19, 2016) (discussing state of the law as to associational rights of inmates and visits from minor children). Regardless of the precise contours of the right, prison regulations that curtail the rights of prisoners are constitutionally valid if they “bear a rational relation to legitimate penological interests.” Overton, 539 U.S. at 132 (citing Turner v. Safley, 482 U.S. 78, 89 (1987).
Here, the limitation on plaintiff's visits or communication with his children was rationally related to legitimate penological interests. The no-contact order was initiated by a counselor from the Oregon Department of Corrections (“ODOC”), not MCJ. Ramsey Decl. ¶ 19, ECF 140. Plaintiff was transferred to MCJ from Eastern Oregon Correctional Institution (“EOCI”) under an ODOC hold in December of 2016. Id. A counselor from EOCI informed deputies at MCJ that plaintiff was ordered by EOCI to no longer contact his children or ex-wife at his ex-wife's request because of “inappropriate writings” plaintiff had sent them. Id. Deputies at MCJ informed plaintiff of the order from EOCI, and plaintiff subsequently filed a grievance on the issue. Monical Decl. Ex. 2, ECF 242. The uncontroverted evidence in the record shows that the limitations on contact between plaintiff and his children was limited in duration-plaintiff submitted a declaration from his daughter that states she was able to visit plaintiff “about 6 months into 2016.” Monical Decl., Ex. 2 at 1, ECF 162. Moreover, plaintiff offers no convincing argument as to why the County Defendant's penological interests in upholding an order from another institution, or protecting the public, in particular minor children, from unwanted contact from an inmate, are invalid. Overton, 539 U.S. at 132 (“The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.”); see also Ellis v.Johnson, 792 F. App'x. 453, 455 (9th Cir. 2019) (“This Court has previously made clear that prisoners do not have a constitutional right to contact visits, even with their family members.”) (citing Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010)).
Finally, to allow amendment to the complaint now, more than five years after this case was initially filed, after the parties invested substantial resources in briefing the cross-motions for summary judgment, and after the court has already issued Findings and Recommendations, would be prejudicial to defendants and an inefficient use of judicial resources. For all of these reasons, plaintiff's motion for leave to amend should be denied.
RECOMMENDATIONS
Plaintiff's Motion for Leave to File Fourth Amended Complaint (ECF 241) should be denied because the proposed amendments are futile and allowing the amendment at this late stage would be unduly prejudicial to the defendants.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, March 31, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.