Levan v. Thomas et al

Filing 14

ORDER granting 10 Defendants' Motion to Dismiss; Plaintiff's action is dismissed without prejudice. The Clerk must enter judgment of dismissal accordingly. Signed by Judge G Murray Snow on 7/6/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Levan,
Plaintiff,

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vs.

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Todd Thomas, et al.
Defendants.

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No. CV 10-2278-PHX-GMS (LOA)
ORDER

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Plaintiff John Levan brought this civil rights action under 42 U.S.C. § 1983 against

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two employees from the Saguaro Correctional Center (SCC) in Eloy, Arizona (Doc. 1).1

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Plaintiff alleged that in August 2010, without provocation, Correctional Counselor William

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Lewis threw Plaintiff to the ground while his hands were handcuffed behind him (id.).

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Plaintiff further alleged that days later, when he was on his way to medical for his resulting

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injuries, Correctional Officer Robert Schneider slammed Plaintiff’s head on the ground,

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again while his hands were cuffed behind him and without provocation (id.).2

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Before the Court is Defendants’ Motion to Dismiss for Failure to Exhaust

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Administrative Remedies (Doc. 10). The Court issued the Notice required under Wyatt v.

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Terhune, 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003), which informed Plaintiff of his

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On screening, the Court dismissed Thomas and Bradley as Defendants (Doc. 6).

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Plaintiff’s excessive force allegations are set forth in Count III of his Complaint (Doc.
1). The Court dismissed Counts I and II for failure to state a claim (Doc. 6).

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obligation to respond and the evidence necessary to successfully rebut Defendants’

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contentions (Doc. 11). Plaintiff did not file a response, and the time for doing so has expired.
The Court will grant Defendants’ motion and terminate the action.

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I.

Motion to Dismiss

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Defendants assert that Plaintiff failed to properly exhaust administrative remedies as

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required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. 10).

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In support, Defendants submit the affidavit of Juan Valenzuela, the SCC Grievance

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Coordinator (id., Ex. 2, Valenzuela Aff. ¶ 2). Valenzuela describes the multiple steps in the

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Corrections Corporation of America (CCA) grievance policy, which applies at the SCC

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facility (id. ¶¶ 1, 4, 6; Attach. A (CCA Policy 14-5, Inmate Grievance Procedures)). First,

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an inmate must attempt to resolve a problem informally by submitting a Request for Service

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(id. ¶¶ 12-13). If not satisfied with the response, the inmate may submit a Informal

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Resolution form (id. ¶ 14). If not satisfied with that response, the inmate may file a Formal

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Grievance with the Grievance Officer, whose decision may be appealed to the Warden (id.

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¶¶ 17-18, 20). The Warden’s decision is final (id. ¶ 21). Valenzuela avers that copies of the

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grievance procedures are available in the library and they are set forth in an Inmate

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Handbook that each inmate receives upon arrival at SCC (id. ¶ 7, Attach. B).

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According to Valenzuela, Plaintiff’s allegations against Defendants constitute a

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grievable matter under the grievance policy (id. ¶ 34). Valenzuela attests that upon review

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of the Inmate Grievance Log, there is no record that Plaintiff filed any Informal Resolutions

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or Formal Grievances related to the excessive-force allegations against Defendants (id. ¶¶ 34-

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35). Defendants argue that this demonstrates Plaintiff’s failure to exhaust and warrants

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dismissal of his Complaint (Doc. 10 at 6-7).

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II.

Exhaustion

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A.

Legal Standard

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

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

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(9th Cir. 2009). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534
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U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative

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

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

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

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

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

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

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

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

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

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Cir. 1988) (quotation omitted).

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

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at 1120.

If a court finds that the plaintiff failed to exhaust

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B.

Analysis

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As stated, Defendants must demonstrate that there were remedies available to

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

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Defendants submit evidence that SCC has an established grievance policy but that Plaintiff

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did not avail himself of it (Doc. 10, Ex. 2, Valenzuela Aff. ¶¶ 6, 12-21, 34; Attach. A).

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Plaintiff indicated in his Complaint that as to his claim against Defendants, he

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submitted a request for administrative relief and appealed it to the highest level (Doc. 1 at

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5 ¶ 5). But the Complaint form also asked Plaintiff that if he did not submit a request for

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relief or appeal it to the highest level, to explain why he did not (id.). In the space provided,

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Plaintiff wrote that he is illiterate and is denied access to the grievance procedures because

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policy prohibits inmates from assisting him (id.).3 Defendants do not address this assertion

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in their motion.

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Plaintiff’s assertions in his Complaint are insufficient to overcome Defendants’

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Plaintiff states that another inmate violated policy to write out the Complaint for him
(Doc. 1 at 6).
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evidence of nonexhaustion. First, the claims in Plaintiff’s Complaint are contradictory,

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indicating both that he grieved his complaint to the highest level and that he was denied

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access to the grievance system (Doc. 1 at 5 ¶ 5). Second, the evidence shows that contrary

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to Plaintiff’s statement, other inmates or staff are permitted to assist him. In the grievance

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policy submitted by Defendants, it states that “assistance from a staff member or

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inmate/resident may be provided when necessary to communicate the problem on the

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grievance form” (Doc. 10, Ex. 1, Attach. A at 2 ¶ C). In addition, Valenzuela attests that if

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inmates have difficulty in understanding the grievance procedures, staff will explain the

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policy to inmates on an individual basis (id., Ex. 2, Valenzuela Aff. ¶ 7).

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On the record before the Court, Defendants have met their burden to show that

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remedies were available, that Plaintiff could have sought assistance in filing a grievance, but

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that he failed to exhaust remedies. Defendants’ Motion to Dismiss will therefore be granted.

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III.

Lack of a Response

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Alternately, the Court has the discretion under Local Rule of Civil Procedure 7.2(I)

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to deem Plaintiff’s lack of response as consent to Defendants’ motion. See Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (upholding dismissal based on failure to comply

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with local rule that failure to respond to a motion constitutes consent to granting of the

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motion). Plaintiff was warned of this possibility (Doc. 11). Before dismissal on this basis,

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the court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Id. at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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If the court does not consider these factors, the record may be reviewed independently on

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appeal for abuse of discretion. Henderson, 779 F.2d at 1424.

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The first three factors do not favor Plaintiff. The Court does not discount Plaintiff’s

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claim that he is illiterate; however, in failing to file anything in response to Defendants’

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motion or the Court’s Notice, even if he could not articulate a response to Defendants’

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argument, Plaintiff fails to show a desire to prosecute this action. There is no risk of
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prejudice to Defendants to resolve the motion in their favor, and judicial efficiency also

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favors resolution of this action. The fourth factor of favoring disposition of cases on their

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merits weighs in Plaintiff’s favor, and for the fifth factor, dismissal without prejudice is the

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least drastic sanction.

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Balancing the five factors, they weigh in Defendants’ favor. Therefore, the Court will

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deem Plaintiff’s lack of a response as a consent to the granting of the motion and dismiss the

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action without prejudice.

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to

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Dismiss (Doc. 10).
(2) Defendants’ Motion to Dismiss (Doc. 10) is granted; Plaintiff’s action is
dismissed without prejudice for failure to exhaust or, alternately, for failure to respond.

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(3) The Clerk of Court must enter judgment of dismissal accordingly.

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DATED this 6th day of July, 2011.

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