Tousignant v. Bergman et al

Filing 23

ORDER The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss (Doc. 15) and Motion to Strike (Doc. 22). Defendant's Motion to Strike (Doc. 22) is granted. Defendant's Motion to Dismiss (Doc. 15) is granted. The claims are dismissed without prejudice, and the Clerk of Court must enter judgment accordingly. Signed by Judge G Murray Snow on 6/30/2011.(KMG)

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1 WO SVK 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dean Thomas Tousignant, Plaintiff, 10 11 vs. 12 Raymond Bergman, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV 10-1804-PHX-GMS (ECV) ORDER 15 Plaintiff Dean Thomas Tousignant filed this civil rights action under 42 U.S.C. § 1983 16 against Detention Officer Raymond Bergman, an employee of the Maricopa County Sheriff’s 17 Office (MCSO). (Doc. 8.) Plaintiff alleged that Defendant1 refused to loosen tightly 18 clamped handcuffs that were applied for 9-12 hours, which caused abrasions and breaking 19 of skin, creating an open wound that became infected. (Id.) Defendant moves to dismiss on 20 the ground that Plaintiff failed to exhaust his administrative remedies as required by the 21 Prison Litigation Reform Act (PLRA).2 (Doc. 15.) The Court will grant the motion and dismiss the case. 22 23 /// 24 /// 25 /// 26 1 The remaining Defendants were dismissed on screening. (Doc. 9.) 27 28 2 The Court sent the Notice required under Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc. 16.) 1 I. Motion to Dismiss 2 A. Legal Standard 3 Under the PLRA, a prisoner must exhaust available administrative remedies before 4 bringing a federal action concerning prison conditions. See 42 U.S.C. § 1997e(a); Griffin v. 5 Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). Exhaustion is required for all suits about 6 prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered 7 through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). And a 8 prisoner must complete the administrative review process in accordance with the applicable 9 rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 10 Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). Thus, 11 the defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. 12 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement 13 in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide 14 disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the 15 method to be used in resolving the factual dispute. Ritza v. Int’l Longshoremen’s & 16 Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). 17 B. Parties’ Contentions 1. 18 Defendant 19 In support of his motion, Defendant submits the declaration of Selethia Down, a 20 Sergeant assigned to the Inmate Hearing Unit; her duties include receipt, processing, 21 tracking, and storage of inmate grievances. (Doc. 15, Ex. 1, Down Decl. ¶¶ 1-2.) She 22 describes the MCSO grievance procedures, which are set out in Policy DJ-3, Inmate 23 Grievance Procedure. (Id. ¶¶ 5, 7.) According to Down, it is a multi-tiered grievance 24 system, which includes (1) the initial grievance and ultimate decision by the Bureau Hearing 25 Officer; (2) the institutional appeal; and (3) the external appeal. (Id. ¶ 7, Ex. B, Policy DJ- 26 3.3) The procedure provides time frames for filing and responding to each step of the 27 28 3 MCSO Policy DJ-3, Inmate Grievance Procedure, was not, in fact, attached to the motion. -2- 1 process; the initial grievance must be filed within 48 hours of the event being grieved. (Id.) 2 She also attests that inmates receive the MCSO Rules and Regulations for Inmates and that 3 the grievance form itself contains language explaining the steps in the grievance process. (Id. 4 ¶¶ 4, 7, Ex. A.) 5 Down attests that she searched the grievance database and found no grievance from 6 Plaintiff regarding being left in handcuffs for 9 to 12 hours or that any detention officer, 7 including Defendant, failed to loosen the handcuffs. (Id. ¶ 11.) 8 Defendant argues that Plaintiff admitted in his First Amended Complaint that he failed 9 to submit a grievance, claiming that staff would not provide one. (Doc. 15 at 3, ref. Doc. 8 10 at 3.) Defendant asserts that the claim is clearly subject to the grievance procedure. (Id.) 11 He also contends that if Plaintiff had a problem obtaining a grievance form, he could use the 12 MCSO direct grievance process, which is initiated by the jail commander on any complaint 13 of an inmate, including verbal complaints, and which does not require the inmate himself to 14 submit the standard grievance form. (Id., Ex. 1, Down Decl. ¶ 13.) 15 2. Plaintiff 16 Plaintiff alleges that no administrative remedies were available or warranted because 17 the specific injury and damage occurred beyond 48 hours from the event. (Doc. 17 at 1.) He 18 argues that when he was arrested on June 10, 2009, he had no physical problems. (Id. at 2.) 19 On June 17 and 18 he was transported to and from court. He appears to argue that one of 20 these two days would be the day of the “event” for purposes of the rule cited by Defendant 21 regarding timing of the initial grievance. A week later, he was diagnosed by medical staff 22 as having MRSA, then treated for about three weeks. (Id.) 23 Plaintiff further contends that the grievance form requires that a reasonable solution 24 be proposed. (Id. at 3.) “What in this case would constitute ‘reasonable,’ sanitized cuffs and 25 limited population in waiting cells are solutions that would be readily responded to. Beyond 26 the (48) hours of the event was an apparent presumption by staff as being outside time limits 27 and/or an issue as non grievable.” (Id.) 28 Plaintiff concludes that he did not fail to exhaust administrative remedies because -3- 1 none were available according to MCSO policy and support staff. If applicable, the time 2 limits had expired, and the matter is and was non-grievable; rather, it is a judicial matter 3 based on personal injuries. (Id.) 4 3. Reply 5 In reply, Defendant argues that it is apparent from Plaintiff’s original and amended 6 complaints that he understood he had been injured while he was handcuffed, not several days 7 later, and that whether the full extent of Plaintiff’s injuries was evident on the date of the 8 actual event is irrelevant. (Doc. 18 at 2.) Plaintiff should have requested a grievance form 9 within 48 hours of being restrained in tight cuffs for too long. (Id. at 2.) Defendant notes 10 that Plaintiff also appears to argue that he was not able to file a grievance, but Defendant 11 asserts that it is unclear whether Plaintiff is alleging that MCSO actively prevented him filing 12 a grievance. (Id. at 3.) Plaintiff provides no evidence to support the allegation. (Id.) 13 Defendant argues that it appears that Plaintiff decided for himself that he was not able to file 14 a grievance regarding this condition of confinement. (Id. at 4.) 15 Defendant further contends that although Plaintiff argues that he did not file a 16 grievance because there was no available remedy for him through the grievance process, the 17 PLRA does not condition the exhaustion requirement on the effectiveness of the 18 administrative remedy. (Id. at 5.) Defendant contends that whether a proposed resolution 19 is reasonable is a function of the grievance process itself. That process must be initiated in 20 order for the determination of reasonableness to be made. (Id.) 21 4. Sur-reply 22 Plaintiff also files a response to the reply, which Defendant moves to strike. (Docs. 23 21, 22.) Plaintiff insists that his claim is outside the grievance process; “as in the case of 24 death occurring in MCSO at the hands of its officers’ treatment or negligence, no such low 25 level prompt response, corrective action or reasonable resolution is or would be available.” 26 (Id. at 1-2.) He argues that the PLRA provides no remedy for the death of a prisoner and no 27 remedy existed here for actual physical injury. (Id. at 2.) Conditions of confinement were 28 not at issue. (Id.) Plaintiff asserts that the issue is not his knowledge of the injuries but about -4- 1 being handcuffed excessively tightly for two days. (Id. at 3.) If a grievance was necessitated 2 every time handcuffing creates chafing, the system would be overrun. (Id. at 3-4.) 3 C. Analysis 4 Defendant has met his burden to establish the existence of a grievance procedure and 5 that Plaintiff failed to exhaust his remedies under it. See Wyatt, 315 F.3d at 1119; see also 6 Brown, 422 F.3d at 936-37. Although the Inmate Grievance Procedure is not annexed to the 7 motion, the Rules and Regulations for Inmates are, and they set forth the grievance process 8 and time lines. Plaintiff fails to establish that he was excused from filing a grievance. 9 First, because Plaintiff’s sur-reply is not proper, see Ekweani v. Maricopa County 10 Sheriff’s Office, 2009 WL 976520, at *1 (D. Ariz. 2009), the Court will grant Defendant’s 11 Motion to Strike. The Court notes that even if it were to consider the arguments, Plaintiff 12 has not established that he was excused from exhausting his administrative remedies. 13 As to the merits of the exhaustion argument, the Court rejects Plaintiff’s claim that the 14 issue was not a “condition of confinement” within the meaning of the PLRA. That argument 15 has been foreclosed by Porter. 534 U.S. at 527. In Porter, the Supreme Court held that 16 exhaustion was required where the inmate claimed that he was beaten by guards; the PLRA 17 mandates exhaustion whether the circumstances or occurrences are general circumstances 18 of incarceration or specific episodes. Id. 19 Likewise, the Court rejects Plaintiff’s suggestion that the grievance procedure offered 20 no appropriate remedy. In Booth, the inmate had alleged that he was beaten by corrections 21 officers, suffered bruising on his wrists as a result of tightening and twisting handcuffs, and 22 was denied medical attention. 532 U.S. at 734. Plaintiff argued that he did not need to 23 exhaust his administrative remedies because the grievance procedure did not provide for 24 money damages, which was the remedy he wanted. Id. The Court reasoned that “one 25 ‘exhausts’ processes, not forms of relief. . . .” Id. at 739. It concluded that Congress 26 mandated exhaustion regardless of the relief offered through administrative procedures. Id. 27 at 741. Here, Plaintiff fails to show that no relief was available through the MCSO grievance 28 process. -5- 1 Plaintiff also argues that he could not file a grievance because the grievance should 2 have been initiated within 48 hours of the event—the handcuffing—but the infection did not 3 occur until later. In Woodford, the Supreme Court held that “[p]roper exhaustion demands 4 compliance with an agency’s deadlines and other critical procedural rules.” Woodford, 548 5 U.S. at 90. The exhaustion requirement is not satisfied by filing an untimely or otherwise 6 procedurally defective appeal. The Ninth Circuit has applied statute-of-limitations analysis 7 to administrative-remedy issues of timeliness. See Ngo v. Woodford, 539 F.3d 1108, 1109- 8 10 (9th Cir. 2008). Under federal law, a claim accrues “when the plaintiff knows or has 9 reason to know of the injury which is the basis of the action.” TwoRivers v. Lewis, 174 F.3d 10 987, 991 (9th Cir. 1999); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Furthermore, 11 the claim accrues “even though the full extent of the injury is not then known or predictable” 12 because otherwise “the statute would begin to run only after a plaintiff became satisfied that 13 he had been harmed enough, placing the supposed statute of repose in the sole hands of the 14 party seeking relief.” Wallace v. Kato, 549 U.S. 384, 391 (2007). 15 It would appear that Plaintiff was required to file his initial grievance within 48 hours 16 of the handcuffing that resulted in cuts and abrasions. Plaintiff does not claim that he was 17 physically unable to do so or that he was prevented from doing so by jail officials. 18 But, here, the Court need not reach the issue of the timeliness of an initial grievance 19 because it is undisputed that Plaintiff failed to file any grievance at all. Plaintiff merely 20 assumes that a later grievance would have been rejected as untimely. Even assuming that 21 rejection of a later grievance would have been improper, Plaintiff cannot benefit from any 22 such exception to the exhaustion requirement if he never attempted to exhaust. See Sapp v. 23 Kimbrell, 623 F. 3d 813, 823 (9th Cir. 2010). 24 recognized an exception to the PLRA exhaustion requirement where prison officials render 25 the administrative remedies process effectively unavailable by improperly screening 26 grievances. Id. But the Court held that to fit within this exception, the prisoner must show, 27 inter alia, that he attempted to exhaust his remedies—especially that he actually filed a 28 grievance or grievances. Id. at 823-24. -6- In Sapp, for example, the Ninth Circuit 1 Finally, although the law does not require exhaustion if Plaintiff was unable to file 2 grievances, Plaintiff fails to establish that he was, in fact, unable to do so. In his First 3 Amended Complaint, Plaintiff asserted that he did not exhaust his administrative remedies 4 due to “lack of cooperation; failure by staff to provide necessary documents for remedy 5 administratively.” (Doc. 8 at 3.) Plaintiff offers no evidence to support this allegation; 6 indeed, in his opposition to the Motion to Dismiss, he offers entirely different reasons for 7 failing to exhaust. 8 Defendant has carried his burden by showing that Plaintiff failed to exhaust his 9 administrative remedies. Plaintiff has not responded by demonstrating that his failure to 10 exhaust should be excused because the administrative procedures were unavailable or 11 because prison officials effectively obstructed his ability to pursue his grievance through the 12 third formal level. 13 The Court will grant Defendant’s motion and dismiss the claim without prejudice. 14 IT IS ORDERED: 15 (1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion to 16 Dismiss (Doc. 15) and Motion to Strike (Doc. 22). 17 (2) Defendant’s Motion to Strike (Doc. 22) is granted. 18 (3) Defendant’s Motion to Dismiss (Doc. 15) is granted. 19 (4) The claims are dismissed without prejudice, and the Clerk of Court must enter 20 21 judgment accordingly. DATED this 30th day of June, 2011. 22 23 24 25 26 27 28 -7-

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