Andrews v. Williams
Order on Motion for Summary Judgment
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
PETER LEE ANDREWS,
CHESTER LEE WILLIAMS,
ORDER AND OPINION
Motion at docket 47)
I. MOTION PRESENTED
At docket 47, defendant Sergeant Chester Lee Williams moved for summary
judgment based on plaintiff’s failure to exhaust his administrative remedies. Plaintiff
responded at docket 50 arguing that defendant did not properly authenticate exhibits, a
problem the court addressed in its order at docket 57. After affidavits to authenticate
the exhibits were filed, plaintiff was given a second opportunity to file a response, which
was filed at docket 60. Defendant replied at docket 61.
Plaintiff alleges that Chester Lee Williams took plaintiff to the ground and hit
plaintiff in the ribs on May 14, 2004, at Cook Inlet Pretrial booking area.1 Plaintiff further
alleges that Williams took plaintiff’s prescription eye glasses at that time and did not
return them, and that Department of Corrections has, as of May 2006, failed to provide
plaintiff with another pair of glasses.2 Plaintiff states that he is legally blind without his
glasses.3 In his most recent amended complaint, plaintiff requests damages, a pair of
prescription eyeglasses, costs, attorney’s fees, and any other relief.4
Defendant Williams argues in his motion to dismiss that plaintiff failed to exhaust
his administrative remedies when he did not file an appeal of the Grievance Screening
Form of June 30, 2005.5 Defendant points out that the Prison Litigation Reform Act of
1995 requires exhaustion of administrative remedies before a prisoner may file suit
under 42 U.S.C. § 1983.6 Defendant notes that plaintiff filed three grievances–two
addressing his lost glasses and one addressing the alleged assault on November 16,
2004.7 Defendant argues for summary judgment based on failure to exhaust.8
Specifically, defendant argues that “Andrews was required to fully exhaust his claim
regarding the alleged assault by Sgt. Williams.”9 In his reply, defendant states that
plaintiff’s motion has both exhausted and unexhausted claims, stating that the claim
regarding his eyeglasses has been properly exhausted.10
Plaintiff concedes that he did not complete the third level of grievance procedure,
and asks the court to stay this action to give him a chance to complete the
administrative process as to the assault claim. Plaintiff also asserts that a motion for
summary judgment is not the proper vehicle for a claim based on exhaustion of
administrative remedies.11 Andrews also claims to be mentally challenged, and points
Doc. 60 at 3.
Doc. 42 at 3.
Doc. 47 at 2-3.
Doc. 47 at 4.
Doc. 47 at 2.
Doc. 47 at 4-5.
Doc. 47 at 6.
Doc. 61 at 1.
Doc. 60 at 2.
out that when he attempted to resolve his grievances through the prison administrative
system, he had no lawyer to help him with the process.12
III. STANDARD OF REVIEW
Under U.S.C. 42 § 1997e(a), no action may 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.”13 The exhaustion requirement applies “to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.”14
Exhaustion must be proper.15 The Supreme Court has held that proper
exhaustion “demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.”16
The Supreme Court recently held that “failure to exhaust is an affirmative
defense under the PLRA,” and that inmates do not need to “specifically plead or
demonstrate exhaustion in their complaints.”17 Prior to that decision, the Ninth Circuit
had held exhaustion to be an affirmative defense as well and found that the proper form
to use in arguing exhaustion of nonjudicial remedies in a PLRA action is an
unenumerated Rule 12(b) motion rather than a motion for summary judgment.18 The
Ninth Circuit has generally found that failure to exhaust administrative remedies should
42 U.S.C. § 1997e(a).
Porter v. Nussle, 534 U.S. 516, 532 (2002).
Woodford v. Ngo, 126 S.Ct. 2378, 2382 (2006).
Id. at 2386 (2006).
Jones v. Bock, 127 S.Ct. 910, 921 (2007).
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
be raised in a motion to dismiss because it is “a matter in abatement”19 and does not go
to the merits of an action.20 The Ninth Circuit has explained a “nonenumerated
Rule 12(b)” motion, is “governed by the general motion provisions in the federal rules”
such as Rule 43(e).21
The failure to exhaust nonjudicial remedies is a matter in abatement, and when it
is raised in a motion for summary judgment, it should be treated as if raised in a motion
to dismiss.22 This court will treat defendant’s motion for summary judgment as a
nonenumerated Rule 12(b) motion. In such a motion to dismiss for lack of exhaustion, a
factual issue may be resolved by the court as “the general view is that there is no right
of jury trial as to that issue.”23
Defendant focuses on three grievances initiated by Andrews.24 Grievances 9448
and 8919 both address the loss of plaintiff’s glasses.25 Grievance 11212 specifically
addressing the alleged assault. Andrews did not appeal the action which screened out
Grievance 11212 pursuant to Section B(2)(a)(2). Thus, Andrews did not exhaust that
Defendant concedes that the claim regarding plaintiff’s eyeglasses has been
“properly exhausted.”26 Defendant’s motion addresses only the exhaustion of plaintiff’s
Stauffer Chemical Co. V. FDA, 670 F.2d 106, 108 (9th Cir. 1982); Studio Electrical
Technicians Local 728 v. International Photographers of the Motion Picture Industries, Local
659, 598 F.2d 551, 552 (9th Cir. 1979).
Ritza v. International Longshoremen’s and Warehousemen’s Union, 837 F.2d 365, 368
(9th Cir. 1988).
Id. at 369.
Id. at 368-69.
Id. at 369.
It appears that there may have been others, but both parties proceed on the basis of
the three identified and set out in exhibits authenticated by defendant.
Doc. 47 Ex. B, C.
Doc. 61 at 1.
claim regarding the alleged assault by defendant. Plaintiff’s opposition states generally
that plaintiff met “two of three of the requirements outlined” for exhaustion, but did not
complete the third and final level of review in the administrative process.27 The court
reads this to be a concession that the assault claim was not fully exhausted.28 Plaintiff
indicates that his failure to take the third step should be excused, because his
intellectual ability is limited, and he had no lawyer. However, it is clear from the record
here that plaintiff has the ability to pursue the grievance process; he did initiate the
process three times and pursue all of his claims through at least a portion of the
process. The court is aware of no authority supporting the proposition that a prisoner is
entitled to counsel in the prison grievance process.
Plaintiff requests a stay of the action to allow plaintiff to properly complete prison
administrative appeals which (if unsuccessful) would then allow the assault claim to be
prosecuted in court. The Supreme Court has held that if one claim is exhausted but
another is not, a court should follow a claim-by-claim approach, dismissing the
unexhausted claims and retaining the others.29 Defendant suggests that dismissal of
exhausted claims might be necessary where exhausted and unexhausted claims are
“closely related and difficult to untangle.”30 That is not the situation here. While all the
claims may be connected to the same confrontation between plaintiff and defendant, the
loss of the eyeglasses and the failure to return them is easily disentangled from
allegations that Williams took plaintiff to the ground and punched him in the ribs. The
court finds that the proper remedy is dismissal without prejudice of the assault claim
which has not yet been properly exhausted.31
Doc. 60 at 3.
Andrews indicates that none of his claims proceeded through the final stage of the
grievance process. However, the court finds it appropriate to rely on defendant’s concession
that the eyeglasses grievances were exhausted, given that exhaustion is an affirmative defense.
Jones at 127 S.Ct. 924-26.
Doc. 61 at 1 (citing Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005)).
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (stating that the proper remedy
for failure to exhaust is “dismissal of the claim without prejudice”).
The motion at docket 47 is treated as a motion to dismiss and is GRANTED in
part and DENIED in part as follows: Plaintiff’s claim alleging that defendant Williams
assaulted plaintiff is hereby dismissed without prejudice. Plaintiff’s claim relating to his
eyeglasses remains pending.
DATED at Anchorage, Alaska, this 27th day of March 2007.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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