Hammond v. Municipality of Anchorage, et al.
ORDER Granting Motion for Summary Judgment at Docket 69 and Dismissing Case.(Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 3:14-cv-00014-RRB
MOTION TO DISMISS
ANDREA L. HAMMOND,
UNNAMED GUARDS, et al.,
Before the Court, at Docket 69, is Defendants’ Motion for Summary Judgment based on
Plaintiff’s alleged failure to exhaust nonjudicial remedies. Plaintiff responds, at Docket 76, that
exhaustion was not possible due to misinformation provided by Defendants. Defendants reply at
Docket 77. Additionally, Defendants move, at Docket 87, to strike Plaintiff’s unsolicited surreply,
which the Court hereby GRANTS.
Pursuant to 42 U.S.C. Section 1983, Plaintiff filed this civil rights action alleging
mistreatment while being incarcerated at the Anchorage Jail on September 3 and 4, 2013.
Specifically, Plaintiff alleges that she was subjected to cruel and unusual punishment and allegedly
forced to stand naked in sewage, subjected to sexual harassment, and denied medical care. Despite
ORDER GRANTING DEFENDANTS’ M OTION TO DISM ISS - 1
her alleged treatment, Plaintiff never filed any grievance regarding the incident. 1 Plaintiff asserts
that she could not file a grievance because she was denied a grievance form at the Anchorage
Correctional Complex and was provided misinformation about the ability to file a grievance for
the Anchorage facility after being transferred to Hiland Mountain Correctional Center. 2
Defendants have moved for summary judgment on this matter due to Plaintiff’s failure to
exhaust her remedies through the prison grievance process. However, the Court treats the failure
to exhaust nonjudicial remedies—which are not jurisdictional—as a matter in abatement, subject
to an unenumerated Rule 12(b) motion rather than a motion for summary judgment. 3 As a motion
to dismiss for failure to exhaust, the Court may “look beyond the pleadings and decide disputed
issues of fact.”4
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with
respect to prison conditions under section 1983. . . , 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.”5 However, exhaustion is only necessary for those remedies that are
actually available to the prisoner and exhaustion is not required “when circumstances render
administrative remedies effectively unavailable.”6
Docket 69 at 2.
2 Docket 76 at 2-3.
3 Albino v. Baca, 697 F.3d 1023, 1029 (9th Cir. 2012) quoting Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003).
4 Id. quoting SAPP v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010).
5 42 U.S.C. 1997e(a).
6 Id. quoting SAPP, 623 F.3d at 821 (internal citation omitted).
ORDER GRANTING DEFENDANTS’ M OTION TO DISM ISS - 2
Under the PLRA, exhaustion is an affirmative defense and the burden of establishing a
failure to exhaust lies on the defendant. 7 The defendant’s burden to establish nonexhaustion is very
low and once met, the burden shifts to the plaintiff to show that the administrative remedies were
In addressing this matter, the Court first looks to whether Defendants have met their burden
establishing nonexhaustion. Defendants have provided the State of Alaska Department of
Corrections Policy 808.03 and a statement from Sherrie Daigle of the Alaska Department of
Corrections, which demonstrate a formal procedure in place for prisoner grievances and Plaintiff’s
failure to file a formal grievance according to the procedure. 9 While Plaintiff asserts that she did
attempt to informally resolve the issue as required by Policy 808.03 section VII(A)(1)(a), she does
not dispute the fact that no formal grievance form was filed within 30 days. 10 Accordingly, the
Court finds that Defendants have met their burden of showing an absence of exhaustion.
Because Defendants have met their burden, the burden now shifts to Plaintiff to establish
that the prisoner grievance procedure was unavailable. Plaintiff asserts that any further part of the
grievance procedure beyond her informal efforts were unavailable for two reasons. First, Plaintiff
requested a grievance form from the guard at the Anchorage jail and was allegedly told by the
guard on duty that there were none. 11 Second, Plaintiff states that once transferred to the Hiland
Jones v. Bock, 549 U.S. 199, 211 (2007); Albino 697 F.3d at 1031.
Albino F.3d at 1031.
9 Docket 71, Exhibit A; Docket 70 at 1-3.
10 Docket 76.
11 Id. at 1.
ORDER GRANTING DEFENDANTS’ M OTION TO DISM ISS - 3
Mountain Correctional Center, she asked a guard there if she could file a complaint about her
treatment in the Anchorage facility and was told the grievance forms were specific to the Hiland
Where affirmative actions by jail staff prevent proper exhaustion, even if unintentiona lly,
this renders administrative remedies effectively unavailable to a prisoner. 13 While the alleged
statements from both guards can be viewed as preventing proper exhaustion, that does not conclude
the Court’s evaluation of the unavailability of administrative remedies. Inmates must also make
reasonable, good-faith efforts to both discover and exhaust a prison’s administrative remedies as
a prerequisite to finding remedies effectively unavailable. 14 Inquiry of prison guards was not the
only method of discovering and understanding the prison grievance process available to Plaintiff.
Once a week the Hiland facility holds a mandatory informational meeting for all inmates that not
only explicitly covers the grievance process in detail, but also provides inmates an opportunity to
ask questions and obtain guidance on having their grievances addressed. 15 Four of these meetings
and discussions occurred during Plaintiff’s incarceration at the Hiland facility between September
4, 2013, and October 5, 2013. Plaintiff also had access to dedicated staff members, or “House
Officers,” whose duties explicitly include instructing inmates on how and where to file
grievances. 16 There is no indication Plaintiff utilized any of these resources made available to her.
Id. at 3.
Albino, F.3d at 1034. See also Sapp, 623 F.3d at 823; Nunez v. Duncan, 591 F.3d 1217,
1224-25 (9th Cir. 2010).
14 Albino F.3d at 1035; Sapp 623 F.3d at 823.
15 Docket 77 at 3-4.
16 Id. at 4-5.
ORDER GRANTING DEFENDANTS’ M OTION TO DISM ISS - 4
Even if the guards made the statements as Plaintiff has alleged, any further inquiry by
Plaintiff into the grievance process would have revealed that 1) grievance forms were available
and 2) she could use the forms at the Hiland facility for complaints about her treatment at the
Anchorage facility. Whether Plaintiff failed to pay attention during the grievance process
meetings, decided not to inquire further about filing a grievance for her situation, or simply elected
to abandon her grievance, the outcome is the same. There is no evidence of any reasonable or
good-faith efforts on Plaintiff’s part that would excuse her failure to exhaust the administra tive
remedies available or would make the procedures unavailable to her. Because Plaintiff has failed
to show that the proper procedures were not known and unknowable with reasonable effort, she
cannot prevail on her claim that the grievance procedure was effectively unavailable. 17 Therefore,
Plaintiff’s failure to file a written grievance form for the alleged incident evidences a failure to
exhaust her administrative remedies.
For the reasons outlined above, Defendants' Motion to Dismiss is hereby GRANTED.
Defendants’ Motion to Stay Discovery at Docket 72 and Plaintiff’s Motion for Court Assistance
to Compel Discovery at Docket 84 are therefore both DENIED as moot. This matter is therefore
DISMISSED in its entirety.
IT IS SO ORDERED this 18th day of May, 2015.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
Albino F.3d at 1037.
ORDER GRANTING DEFENDANTS’ M OTION TO DISM ISS - 5
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