Proctor v. Corrections Corporation of America et al

Filing 65

ORDER the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss 51 . Defendants' Motion to Dismiss 51 is granted as to the Eighth Amendment claim, which is dismissed without prejudice; the remaining claims are also dismissed without prejudice. Pending motions are denied as moot re 62 . The action is terminated, and the Clerk of Court must enter judgment accordingly. Signed by Senior Judge Robert C Broomfield on 1/31/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bradley D. Proctor,

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Plaintiff,
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vs.
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Corrections Corporation of America, et al.,)
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Defendants.
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No. CV 11-0754-PHX-RCB (DKD)
ORDER

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Plaintiff Bradley D. Proctor was an Alaskan inmate who was, during the relevant time

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period, in the custody of the Red Rock Correctional Center (RRCC) in Eloy, Arizona,

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pursuant to a contract between the State of Alaska Department of Corrections and

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Corrections Corporation of America (CCA). Plaintiff filed this civil rights Complaint,

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alleging federal and state-law claims regarding medical care. (Doc. 33.) The remaining

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Defendants—Cox, Crane, and Miracle—move to dismiss the federal claim on the ground that

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Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation

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Reform Act (PLRA).1 (Doc. 51.) They also seek to dismiss the state-law claims on the

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ground that Plaintiff failed to disclose an expert witness and, therefore, will be unable to

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comply with Ariz. Rev. Stat. § 12-563, which requires proof of breach of the standard of care

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and that such breach was the proximate cause of the injury. (Id.)

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The Court will grant the motion as to the Eighth Amendment claim, decline

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The Court provided Plaintiff a Notice as required by Wyatt v. Terhune, 315 F.3d
1108, 1120 n.14 (9th Cir. 2003). (Doc. 52.)

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supplemental jurisdiction on the state law claims, and terminate the action.

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I.

Background

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Plaintiff’s claims arise out of a fall from his upper bunk on December 4, 2008.

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Plaintiff suffered injuries requiring reconstructive facial surgery and follow-up surgery.

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(Doc. 33.) Plaintiff alleged that Defendants were deliberately indifferent to his medical

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needs, in violation of the Eighth Amendment, and that they were negligent and committed

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medical malpractice, in violation of state law. (Id.) The remaining claims and Defendants

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were dismissed on screening. (Doc. 34.)

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II.

Plaintiff’s Response is Untimely

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Plaintiff was granted two extensions of time to file his response. (Docs. 57, 61.) The

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response was due December 17, 2012. (Doc. 61.) Plaintiff’s response is dated December

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21, 2012; it is, therefore, untimely. (Doc. 63.) Plaintiff was advised that if he failed to

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respond, the Court could treat the failure to respond as consent to granting Defendants’

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motion. (Doc. 52.)
As discussed below, even if the Court considers the response, the Court will dismiss

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the action.

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III.

Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies

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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 concerning prison conditions. See 42 U.S.C. § 1997e(a); Griffin

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v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). Exhaustion is required for all suits about

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prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered

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through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). And a

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prisoner must complete the administrative review process in accordance with the applicable

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rules. See Woodford v. 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 v.

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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement
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in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide

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disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the

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method to be used in resolving the factual dispute. Ritza v. Int’l Longshoremen’s &

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Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted).

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B.

Parties’ Contentions

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In support of their motion, Defendants submit the affidavit of Carl Richey, RRCC

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Grievance Coordinator (Doc. 51, Ex. 1, Richey Aff. ¶ 1); State of Alaska Prisoner Grievance

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Procedure 808.03 (id., Ex. A); Grievance Log (id., Ex. B); and Plaintiff’s Grievances (id.

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Exs. C-E).

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Defendants assert that at the time relevant to Plaintiff’s Complaint, RRCC had a

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grievance procedure governed by Policy 808.03. (Id., Richey Aff. ¶ 4-6.) The procedure

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consists of three steps: (1) an informal resolution, (2) a formal grievance, and (3) an appeal

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and final determination. Defendants assert that according to Plaintiff’s grievance file,

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Plaintiff did not file a grievance regarding the claims in his First Amended Complaint. (Id.

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¶¶ 28, 34.)

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Plaintiff responds that “every time he attempted to commence the grievance process,

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that effort was thwarted by corrections officials.” (Doc. 63 at 3.) He also argues that under

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Alaska law, he is not required to exhaust administrative remedies. (Id.) Defendants reply

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that the case on which Plaintiff relies is inapplicable to Plaintiff’s federal claim and that

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Plaintiff offers nothing but a bald allegation that he was thwarted in his effort to file a

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grievance. (Doc. 64 at 2-3.)

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C.

Analysis

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The Court finds that Plaintiff failed to exhaust administrative remedies on the Eighth

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Amendment claim. Defendants provide evidence of an available administrative remedy and

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Plaintiff’s failure to properly exhaust under that process, and Plaintiff fails to provide a

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legally sufficient excuse for his failure to exhaust.

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As noted, the PLRA requires exhaustion of administrative remedies for federal claims.

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Plaintiff’s authority, Hymes v. DeRamus, 222 P.3d 874 (Alaska 2010), relates to a prisoner’s
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state-law claim. Plaintiff’s conclusory allegation that he was thwarted in his efforts to file

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a grievance is insufficient to excuse a failure to exhaust his deliberate indifference claim.

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Plaintiff does not state when he attempted to file or who thwarted his efforts.

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The Court will dismiss the Eighth Amendment claim without prejudice.
IV.

Defendants’ Motion to Dismiss State Law Claims for Failure to Comply with

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Ariz. Rev. Stat. § 12-563

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Because the Court has dismissed the federal claim, the Court declines to exercise

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supplemental jurisdiction over the remaining state law claims. See Gini v. Las Vegas Metro.

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Police Dept., 40 F.3d 1041, 1046 (9th Cir. 1994). The Court notes that in terms of

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“substantial preparation” on the supplemental claims, little activity appears to have occurred

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in this case. 28 U.S.C. §1367(c)(3), see Commentary on 1988 Revision, Discretionary

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Rejection of Supplemental Jurisdiction. Service of process on Defendants was not completed

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until April 27, 2012, and no Scheduling Order was issued until May 22, 2012. (Docs. 40-42,

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45.) The discovery deadline was August 20, 2012, and the present motion was filed October

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12, 2012. (Docs. 45, 51.)

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The Court will not, however, remand this case because it was removed to the United

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States District Court of Alaska after being initially brought in the Alaska Superior Court.

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(Doc. 12 at 1-2.) As noted in the Transfer Order from the United States District Court of

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Alaska, the action should have been brought in Arizona because all Defendants are residents

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of Arizona and Plaintiff alleges that the action supporting the complaint occurred in Arizona.

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(Id.) Therefore, the Court will dismiss the state law claims without prejudice to Plaintiff

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refiling them in State Court in Arizona.

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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
Dismiss (Doc. 51).
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Defendants’ Motion to Dismiss (Doc. 51) is granted as to the Eighth

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Amendment claim, which is dismissed without prejudice; the remaining claims are also

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dismissed without prejudice.
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(3) Pending motions are denied as moot.

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(4) The action is terminated, and the Clerk of Court must enter judgment accordingly.

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DATED this 31st day of January, 2013.

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