Gutierrez v. Corrections Corporation of America et al

Filing 43

ORDER granting 20 Defendant's Motion to Dismiss; Plaintiff's claim is dismissed without prejudice for failure to exhaust administrative remedies.The Clerk must enter judgment of dismissal and terminate the action. Signed by Judge Robert C Broomfield on 7/18/11.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Raymond V. Gutierrez,

10

Plaintiff,
11

vs.
12

Corrections Corp. of America, et al.
13

Defendants.

14
15

)
)
)
)
)
)
)
)
)
)
)
)
)

No. CV 10-0117-PHX-RCB (ECV)
ORDER

16

Plaintiff Raymond V. Gutierrez brought this civil rights action under 42 U.S.C. § 1983

17

against Corrections Corporation of America (CCA) (Doc. 16).1 Plaintiff’s claim arose during

18

his confinement at the La Palma Correctional Center (LPCC), a CCA facility in Eloy,

19

Arizona (Doc. 16). Plaintiff alleged that Defendant’s broadcast of Protestant network

20

programming and failure to make any Catholic network programming available constituted

21

a Fourteenth Amendment equal protection violation (Doc. 16).2

22
23

Before the Court is Defendant’s Motion to Dismiss (Doc. 20). The Court will grant
the motion and terminate the action.

24
25
26
27
28

1

Upon screening of the First Amended Complaint, the Court dismissed twelve CCA
officials and employees as Defendants (Doc. 17).
2

The Court dismissed Plaintiff’s claims alleging violations of the First Amendment
and the Religious Land Use and Institutionalized Persons Act and his state-law claims (Doc.
17).

1

I.

Motion to Dismiss

2

A.

Defendant’s Contentions

3

Defendant moves for dismissal of Plaintiff’s claim on the ground that he failed to

4

exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA),

5

42 U.S.C. § 1997e(a) (id.). In support, Defendant submits the affidavit of Assistant Warden

6

Seidl, who explains the grievance process that is provided to California Department of

7

Corrections and Rehabilitation (CDCR) inmates, like Plaintiff, who are housed at LPCC (id.

8

at 2, Ex. A, Seidl Aff. ¶ 4). The grievance process is contained in LPCC Policy 14-101, and

9

it incorporates the time lines and requirements set forth in 15 California Code of Regulations

10

§ 3084 (id., Seidl Aff. ¶ 5; Ex. A-1 (Policy 14-101)). The grievance system consists of four

11

levels: (1) the inmate must submit an Informal Resolution Form within 15 days of the

12

incident being grieved; (2) if unsatisfied with the response, the inmate may file a Level One

13

formal grievance with the Grievance Coordinator, who keeps a log of all formal grievances;

14

(3) if not satisfied with the Level One response, the inmate may file a Level Two appeal to

15

the California Out-of-State Correctional Facility (COCF) Appeals Coordinator; and (4) if not

16

satisfied with that response, the inmate may submit a Level Three formal grievance to the

17

COCF Director (id. ¶ 10). Seidl attests that upon arrival at the LPCC, inmates are issued an

18

Inmate Orientation Handbook that summarizes the grievance procedures and they are given

19

a verbal explanation of the procedures during an Orientation Program (id. ¶ 6).

20

Attached to Seidl’s affidavit are copies of grievance documents showing that Plaintiff

21

submitted an informal resolution on June 22, 2010, in which he requested Catholic channel

22

programming (id. ¶ 15; Ex. A-2). On July 2, 2010, Plaintiff filed a Level One formal

23

grievance specifically asking that Eternal Television Word Network, a Catholic network, be

24

aired (id. ¶ 16; Ex. A-3). On August 6, 2010, Grievance Coordinator Williams screened

25

Plaintiff’s formal grievance and directed him to contact the Recreation Supervisor (id. ¶ 17;

26

Ex. A-4). In his response, Williams also informed Plaintiff that the cable network Plaintiff

27

requested was not part of the current cable package that the facility subscribed to and that it

28

would have to be requested at the time of cable package negotiations (id. ¶ 18; Ex. A-4).
-2-

1

Seidl avers that there is no record that Plaintiff filed any appeal from this response (id. ¶ 19).

2

Defendant argues that in addition to failing to complete all levels of the grievance

3

process, Plaintiff’s grievance was untimely because it was not filed within 15 days of the

4

incident (id. at 7). Defendant notes that in his First Amended Complaint, Plaintiff alleged

5

that Defendant began airing the Protestant network on or about June 1, 2009, but Plaintiff did

6

not file his grievance on the issue until June 2010 (id.). Defendant further argues that

7

Plaintiff’s June 22, 2010 grievance came five months after he initiated this lawsuit and is

8

therefore improper (id.). For these reasons, Defendant maintains that Plaintiff failed to

9

comply with the PLRA exhaustion requirements and moves the Court to dismiss his claim

10

with prejudice (id. at 8).

11

B.

Plaintiff’s Response

12

The Court issued the Notice required under Wyatt v. Terhune, 315 F.3d 1108, 1120

13

n. 14 (9th Cir. 2003), which informed Plaintiff of his obligation to respond and the evidence

14

necessary to successfully rebut Defendant’s contentions (Doc. 21). This Notice was returned

15

in the mail with a notation that Plaintiff was no longer at the LPCC (Doc. 22). Plaintiff then

16

filed a Notice of Change of Address indicating that he had been transferred to a facility in

17

Tutwiler, Mississippi (Doc. 24). The Wyatt Notice was resent to Plaintiff’s new address

18

(Doc. 25), and Plaintiff was granted additional time to file his response (Doc. 28). In his

19

response, Plaintiff states that he did not receive a copy of the Court’s Notice that had been

20

returned undelivered but that he nonetheless submits his response (Doc. 36).

21

Plaintiff asserts that while at the LPCC, he never attended an orientation, received an

22

Inmate Handbook, or signed documents indicating that he did (id. at 2). Plaintiff states that

23

LPCC prison officials failed to respond to his grievances (id.). He avers that he filed a

24

informal grievance to CO Meyers as directed, but there was no response or indication that

25

his grievance was deficient (id.). Plaintiff further avers that he submitted a formal grievance

26

to CO Williams, who did not respond timely, and his response told Plaintiff to write to

27

Meyers—who had already failed to respond to Plaintiff (id. at 2-3).

28

Plaintiff submits that LPCC officials’ failure to follow the grievance policy and
-3-

1

respond to grievances in a timely manner prevented him from exhausting his claim (id. at 3).

2

As to the timing of Plaintiff’s grievance attempts, Plaintiff explains that this action was

3

originally filed with a group of other inmates and that when his claim was separated, he filed

4

an in forma pauperis application and attempted to grievance his claim; however, LPCC

5

officials prevented exhaustion (id.).

6

C.

Defendant’s Reply

7

In reply, Defendant maintains that every inmate receives orientation and a copy of the

8

Inmate Handbook (Doc. 37 at 2). Defendant nonetheless notes that Plaintiff transferred to

9

the LPCC from the Florence Correctional Center, another CCA facility that houses CDCR

10

inmates (id.). Defendant states that the grievance procedures for CDCR inmates are the same

11

at all CCA facilities (id. at 2-3). Defendant submits that affidavit of Ruth Williams,

12

Grievance Coordinator, who states that Plaintiff was housed at the Florence facility for three

13

years, and he acknowledged receipt of the Inmate Handbook by signing the “Receiving &

14

Discharge Checklist” in September 2007 (id., Attach., Williams Aff. ¶¶ 2, 5-7 & Ex. 1).

15

Williams also avers that prior to filing a complaint about religious television programming,

16

Plaintiff filed four informal resolution forms or formal grievance forms relating to various

17

issues, including inmate wages and medical charges (id. ¶ 10 & Ex. 2). Thus, Defendant

18

contends that Plaintiff was familiar with the applicable grievance procedures (id. at 3).

19

Defendant reiterates that Plaintiff did not appeal his formal grievance after it was

20

screened by Williams and, therefore, he failed to exhaust administrative remedies (id. at 4).

21

D.

Plaintiff’s Supplemental Response

22

Because Plaintiff indicated that he did not receive the Court’s Wyatt Notice before

23

filing his response, the Court permitted additional time for Plaintiff to submit a supplemental

24

response (Doc. 39).

25

In his supplemental response, Plaintiff repeats that he never received orientation at the

26

LPCC, and he asserts that he did not receive an Inmate Handbook while at the Florence

27

facility (Doc. 40 at 2). Plaintiff submits the same copies that Defendant submitted of his

28

informal resolution, his formal grievance, and William’s response/screening of the formal
-4-

1

grievances (id., Attachs.). Plaintiff restates that he attempted to grieve his claim; however,

2

Meyers never responded to his grievance (id. at 3). Plaintiff concludes that LPCC officials

3

did not follow grievance procedures and, in fact, CCA has since instituted a new grievance

4

policy and provides copies of grievance forms to inmates because there were so many

5

problems with the old policy (id.).3

6

E.

Defendant’s Supplemental Reply

7

Defendant reargues its claim that Plaintiff previously acknowledged receipt of the

8

Inmate Handbook and he understood the grievance procedures (Doc. 41 at 3-4). Defendant

9

states that the grievance documents that Plaintiff submits fail to show that he took any steps

10

to appeal the response to his formal grievance (id. at 4).

11

II.

Exhaustion

12

A.

Legal Standard

13

Under the PLRA, a prisoner must exhaust available administrative remedies before

14

bringing a federal action. See 42 U.S.C. § 1997e(a); Griffin v. Arpaio, 557 F.3d 1117, 1119

15

(9th Cir. 2009). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534

16

U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative

17

process, Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner must complete the

18

administrative review process in accordance with the applicable rules. See Woodford v.

19

Ngo, 548 U.S. 81, 92 (2006).

20

Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). Thus,

21

the defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315

22

F.3d at 1119. Because exhaustion is a matter of abatement in an unenumerated Rule 12(b)

23

motion, a court may look beyond the pleadings to decide disputed issues of fact. Id. at 1119-

24
3

25
26
27
28

Plaintiff also alleges that he has been denied access to the courts because he is not
timely receiving court documents and his “priority legal user” requests at his current housing
facility are subject to delays (Doc. 40 at 1). Plaintiff’s First Amended Complaint did not
include an access-to-the-court claim, and Plaintiff was provided additional time to file
supplemental briefing on the exhaustion issue. Further, Plaintiff does not allege any actual
injury as a result of the alleged delays or denial of access. See Lewis v. Casey, 518 U.S. 343,
351 (1996). Therefore, Plaintiff fails to state an access-to-the-court claim.
-5-

1

20. Further, a court has broad discretion as to the method to be used in resolving the factual

2

dispute. Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th

3

Cir. 1988) (quotation omitted).

4

administrative remedies, the proper remedy is dismissal without prejudice. Wyatt, 315 F.3d

5

at 1120.

If a court finds that the plaintiff failed to exhaust

6

B.

Analysis

7

As stated, Defendant must demonstrate that there were remedies available to Plaintiff.

8

See id. at 1119; see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). Defendant

9

submits evidence that the LPCC had established grievance procedures and that Plaintiff used

10

those procedures to complain about various issues (Doc. 20, Ex. A, Seidl Aff. ¶ 5; Doc. 37,

11

Attach., Williams Aff. ¶ 10).

12

Defendant’s evidence demonstrates that Plaintiff completed the first two steps of the

13

grievance process, but failed to file a Level Two appeal (Doc. 20, Ex. A, Seidl Aff. ¶ 19).

14

In his First Amended Complaint, Plaintiff indicated that he submitted a request for

15

administrative relief and appealed it to the highest level (Doc. 16). But in his response and

16

supplemental response, Plaintiff makes no claim that he filed or that he attempted to file a

17

Level Two appeal after he received William’s response to his formal grievance. Plaintiff’s

18

general claims that LPCC officials refused to answer grievances and did not follow the

19

grievance procedures are insufficient to overcome Defendant’s evidence of an available

20

grievance system.

21

Defendant’s evidence also demonstrates that Plaintiff did not submit his informal

22

resolution and formal grievance related to his claim until after this lawsuit was filed (see

23

Doc. 1, Compl. docketed Jan. 20, 2010). Plaintiff was required to complete administrative

24

remedies before submitting his Complaint to federal court. Vaden v. Summerhill, 449 F.3d

25

1047, 1051 (9th Cir. 2006). Although Plaintiff’s amended pleading was filed after he

26

initiated the grievance procedures, his claim concerning religious broadcasting did not arise

27

between the time of the Complaint and First Amended Complaint; he specifically alleged that

28

it arose on or about June 1, 2009 (Doc. 16 at 4).
-6-

1

On the record before the Court, Defendant has met its burden to show that remedies

2

were available to Plaintiff but that he failed to exhaust his claim. Defendant’s Motion to

3

Dismiss will therefore be granted, and Plaintiff’s First Amended Complaint will be dismissed

4

without prejudice.

5

IT IS ORDERED:

6
7
8
9

(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion to
Dismiss (Doc. 20).
(2) Defendant’s Motion to Dismiss (Doc. 20) is granted; Plaintiff’s claim is dismissed
without prejudice for failure to exhaust administrative remedies.

10

(3) The Clerk of Court must enter judgment of dismissal and terminate the action.

11

DATED this 18th day of July, 2011.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-