MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 256

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ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY By: STEPHEN A. WOLF State Bar No. 018722 JOSEPH I. VIGIL State Bar No. 018677 Deputy County Attorneys MCAO Firm No. 00032000

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CIVIL DIVISION Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 Telephone [phone] Attorneys for Joseph Arpaio IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA William Mathews, Plaintiff, NO. CV 06-1143-PHX-FJM (ECV) MOTION TO DISMISS

Joseph Arpaio, Defendant. Defendant Arpaio moves to dismiss this action pursuant to Rule 12(b), Federal Rules of Civil Procedure, because Plaintiff Mathews has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e(a). This motion is supported by the following Memorandum of Points and Authorities, Affidavit, and Attachments. 1

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND A. Plaintiff's Complaint

On January 5, 2006, Plaintiff William Mathews was booked (P137390) into the Maricopa County Jail's Intake Unit and transferred to the Fourth Avenue Unit the same day. Affidavit of Zelean Tademy at ¶12, attached hereto as Exhibit 1. On January 14, 2006, he was transferred to the Towers Unit. Id. On June 7, 2006, he was transferred to the Lower Buckeye Unit. Id. On June 12, 2006, he was transferred back to the Towers Unit where he remains in custody. Id. On April 24, 2006, he filed an action against Defendant Arpaio pursuant to 42 U.S.C. § 1983. Complaint (Doc. #1) at 1. Plaintiff alleges that while he was detained at the Towers Unit, Defendant Arpaio violated his constitutional rights by failing to provide adequate outdoor recreational opportunities for him. 1 Id. at 6, ¶3. Plaintiff contends that the

alleged violation of his constitutional rights caused him to experience "bone, joint and muscle problems; [elevated] blood pressure ... which may be leading to heart disease or stroke; moderate depression and the first signs of obesity." Id. 6, ¶4. Plaintiff admits that he did not exhaust his administrative remedies for all of those allegations, id. at 6, ¶5(b), (c), but he asserts that the "jail commander

The Court dismissed Defendant Maricopa County Sheriff's Office because the Sheriff's Office is not a proper defendant. Order (Doc. #2) at 3. The Court also dismissed Counts I-II (overcrowded living conditions) because Plaintiff failed to state a claim. Order at 3-4. 2

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stated this was not a grievable issue," id. at 6, ¶5(d). B. MCSO Inmate Grievance Procedure

The Maricopa County Sheriff's Office ("MCSO") has established an inmate grievance and appeal process for inmates to register complaints concerning the interpretation and application of policies that govern their treatment in Maricopa County Jail facilities. Exhibit 1 at ¶3. MCSO Policy & Procedure DJ-3 ("Policy DJ-3") describes that inmate grievance procedure. attached hereto as Exhibit 1(A). An inmate may submit a grievance about any issue. Ex. 1 at ¶9; Ex. 1(A) at ¶¶1(C), 2. Between January 1, 2006 and April 30, 2006, inmates filed 27 grievances at the Towers Unit alleging inadequate outdoor recreational opportunities. Ex. 1 at ¶11. Detention officers do not ignore inmate grievances. Ex. 1 at ¶10. As part of their daily shift duties, detention officers pass out grievance forms to inmates who request them. Id. Moreover, detention officers do not restrict an inmate's privileges or otherwise retaliate against an inmate because that inmate has filed a grievance form. Id. MCSO evaluates and resolves inmate grievances by using a multi-tiered administrative process. Ex. 1 at ¶5; Ex. 1(A). An inmate files a grievance by completing an Inmate Grievance Form 5000-239 ("Inmate Grievance Form"). Ex. 1 at ¶5. (A copy of the Inmate Grievance Form is attached hereto as Exhibit 1(B) and incorporated herein by this reference.) 3 The inmate initiates the Id. at ¶4; Policy DJ-3,

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informal grievance process by submitting the grievance form to detention personnel in an attempt to resolve the issue. Ex. 1 at ¶5; Ex. 1(A) at ¶4. If the detention officer cannot resolve the issue, the officer forwards the grievance to the shift supervisor. Ex. 1 at ¶5; Ex. 1(A) at ¶4(A). If the shift supervisor is unable to resolve the grievance, the shift supervisor forwards the grievance to a hearing officer. Ex. 1 at ¶5; Ex. 1(A) at ¶4(B). The hearing officer then reviews the matter and takes appropriate action. Ex. 1 at ¶5; Ex. 1(A) at ¶6. If the inmate is not satisfied with the outcome of the informal grievance process, he may then proceed to the formal grievance process by filing an Institutional Grievance Appeal with the jail commander. Ex. 1 at ¶6; Ex. 1(A) at ¶5. If the inmate is not satisfied with the jail commander's decision on appeal, he may then file an External Grievance Appeal, which is forwarded to an external referee. Ex. 1 at ¶6; Ex. (A) at ¶7. The external referee prepares a response and written decision which concludes MCSO's formal grievance procedure and exhausts the inmate's administrative remedies. Ex. 1 at ¶6; Ex. 1(A) at ¶¶7(F), 8. During the booking process, MCSO provides each inmate with a copy of the Rules and Regulations for Inmates ("Rules for Inmates") which describes the inmate grievance procedure. Id. at ¶7; Rules for Inmates, attached hereto as Exhibit 1(C). C. Plaintiff's Grievance Record

On January 5, 2006, Plaintiff was booked into the Intake Unit and later 4

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transferred to the Fourth Avenue Unit. Ex. 1 at ¶12. On January 14, 2006, he was transferred to the Towers Unit. Id. On June 7, 2006, he was transferred to the Lower Buckeye Unit. Id. On June 12, 2006, he was transferred back to the Towers Unit where he remains in custody. Id. During his incarceration from January 5, 2006 through the present, Plaintiff filed three inmate grievances. Id. at ¶13. He filed those three grievances after he commenced the present action on April 24, 2006. Id. None of those grievances relate to the allegations in this action. Id. All of those grievances were resolved informally. Id. II. LEGAL ARGUMENT A. A Motion to Dismiss is the Proper Avenue for this Challenge.

An inmate's failure to exhaust administrative remedies pursuant to the PLRA is treated as a matter in abatement subject to an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), cert. denied, U.S. 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003); see also Ritza v. Int'l Longshoremen's and Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988) ("Failure to exhaust non-judicial remedies is a matter in abatement, not going to the merits of the claim, and as such is not properly raised in a motion for summary judgment.") In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-1120. A defendant has the burden of raising and proving an inmate's failure to exhaust non-judicial remedies. Wyatt, 315 F.3d at 1119. If the Court concludes 5

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that the inmate has not exhausted non-judicial remedies, it may dismiss the inmate's claim without prejudice. Id. at 1120. B. Plaintiff Has Failed to Exhaust Administrative Remedies.

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §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." 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement applies to "all inmate lawsuits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). "[A]n inmate must exhaust [available remedies] irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001). To fully exhaust a Sec. 1983 claim, an inmate must pursue his grievance to the highest administrative level available to him. Neese v. Arpaio, 397 F.Supp.2d 1178, 1180 (D.Ariz. 2005). Exhaustion must occur prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). MCSO records indicate that Plaintiff filed three grievances during his period of incarceration. Ex. 1 at ¶13. None of those grievances allege

inadequate outdoor recreational opportunities. Id. By choosing not to file a grievance about that issue, Plaintiff has failed to exhaust his administrative 6

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remedies as required by the PLRA. Id. at ¶14. Plaintiff admits that he did not exhaust his administrative remedies for that allegations. Complaint at 6, ¶5(b), (c). "A prisoner's concession to

nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt, 315 F.3d at 1120. However, Plaintiff asserts that the "jail commander stated this was not a grievable issue." Complaint at 6, ¶5(d). The MCSO inmate grievance procedure does not restrict the type of grievance that an inmate may submit for evaluation and resolution. Ex. 1 at ¶9; Ex. 1(A) at ¶¶1(C), 2. Moreover, between January 1, 2006 and April 30, 2006, inmates filed 27 grievances at the Towers Unit alleging inadequate outdoor recreational opportunities. Ex. 1 at ¶11. When an inmate seeks to excuse his failure to file a grievance, he raises the question of whether in fact he had any administrative remedies available to him. The test for deciding that question is an objective one: whether "a similarly situated individual of ordinary firmness" would have deemed the remedies available. Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004); see also Jones v. Smith, 266 F.3d 399, 399 (6th Cir. 2001) (dismissal for failure to exhaust was appropriate because inmate did not allege that the officer who refused to provide the grievance form was the only source for those forms or that inmate made other attempts to obtain a form or file a grievance without a form); and Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (Sec. 1997e(a) does not permit a court to consider inmate's subjective beliefs in determining 7

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whether administrative remedies are "available.").

In this case, a similarly

situated individual of ordinary firmness would have deemed the remedies available for Plaintiff's allegations about overcrowded and unsanitary living conditions and denial of outdoor recreation for inmates in protective custody. Therefore, Defendant urges the Court to dismiss this action, pursuant to Rule 12(b), Federal Rules of Civil Procedure, because Plaintiff has failed to exhaust his administrative remedies as required by the PLRA, 42 U.S.C. §1997e(a). III. CONCLUSION For the reasons stated above, Defendant Arpaio respectfully asks this Court to dismiss Plaintiff Mathews' Complaint with prejudice. RESPECTFULLY SUBMITTED this 15th day of September 2006. ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY BY: s/ Stephen A. Wolf STEPHEN A. WOLF JOSEPH I. VIGIL Deputy County Attorneys Attorneys for Joseph Arpaio

15 16 17 18 19 20 21 22 ORIGINAL of the foregoing E-FILED this 15th day of September 2006 and copies MAILED this 18th day of September 2006 to:

Honorable Frederick J. Martone United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 526 401 West Washington Street, SPC 62 Phoenix, Arizona 85003

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Honorable Edward C. Voss United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 324 401 West Washington Street, SPC 75 Phoenix, Arizona 85003 William Mathews #P137390 TJ-MCSO-Phoenix Towers Jail-Maricopa County Sheriff's Office 3127 West Gibson Lane Phoenix, AZ 85009 Plaintiff Pro Per s/ Terri Giacalone
CJ2006 0498 S:\COUNSEL\Civil\Matters\CJ\2006\Mathews, William CJ06-498\Pleadings\MTD.doc

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