Wilson v. Barcklay et al

Filing 14

ORDER tht the reference to the Magistrate Judge is withdrawn as to Defendant Barcklay's Motion to Dismiss Count II (Doc. 7). Defendant Barcklay's Motion to Dismiss Count II 7 is granted, and Barcklay is dismissed and Count II is dismissed without prejudice. The remaining claim is Count I against the Doe Defendants. Signed by Senior Judge Robert C Broomfield on 8/10/12.(DMT)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Van L. Wilson,
Plaintiff,

11
12

vs.

13
Richard Bock, et al.,
14
Defendants.
15

)
)
)
)
)
)
)
)
)
)
)

No. CV 11-2376-PHX-RCB (ECV)
ORDER

16

Plaintiff Van L. Wilson, who is in the custody of the Arizona Department of

17

Corrections (ADC), filed this civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.)

18

Barcklay moves to dismiss Count II on the ground that Plaintiff failed to exhaust his

19

administrative remedies as required by the Prison Litigation Reform Act (PLRA).1 (Doc.

20

7.)
The Court finds that Plaintiff failed to exhaust administrative remedies on Count II

21
22

and will grant the motion.

23

I.

24

Background
In his First Amended Complaint, Plaintiff raised three counts.2 (Doc. 4.) In Count

25
26
27

1

The Court provided Plaintiff a Notice as required by Wyatt v. Terhune, 315 F.3d
1108, 1120 n.14 (9th Cir. 2003). (Doc. 8.)
2

28

On screening, the Court dismissed Count III for failure to state a claim and did not
order service upon the Doe Defendants named in Count I. (Doc. 5.)

1

II, Plaintiff alleged that his Eighth Amendment rights were violated when Barcklay refused

2

to provide more than minimal treatment for injuries sustained in an alleged assaulted on

3

December 7, 2010, by another inmate. Plaintiff claimed that his injuries were obvious

4

because his left eye did not move with his right eye and because he could not walk. He

5

alleged that he requested treatment on multiple occasions over a 13-day period, but Barcklay

6

refused to order x-rays or provide pain medication and Plaintiff did not receive treatment

7

other than ice packs until he was sent to the hospital on December 29 and underwent surgery

8

on his eye and it was determined that his ankle was broken. Plaintiff alleges that he suffered

9

permanent damage to the left orbital socket and experiences continuing pain, headaches, and

10

poor vision. (Id.)

11

II.

Defendant’s Motion to Dismiss

12

A.

Legal Standard

13

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

14

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

15

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

16

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

17

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

18

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

19

rules. See Woodford v. 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 v.

22

Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement

23

in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide

24

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

25

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

26

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

27

...

28
-2-

1
2

B.

Parties’ Contentions
1.

Defendant

3

In support of her motion, Defendant submits the affidavit of Juliet Respicio-Moriarty,

4

ADC Health Services Coordinator (Doc. 7, Ex. A, Moriarty Aff. ¶ 1); Department Order

5

(DO) 802, Inmate Grievance Procedure, effective July 13, 2009 (id., Ex. 1); and Director’s

6

Instruction (DI) 287, Modification of DO 802, effective May 28, 2010 (id., Ex. 2).

7

Defendant asserts that at the time relevant to Plaintiff’s Complaint, ADC had a

8

grievance procedure governed by DO 802 and DI 287, which established the policy for

9

inmates to follow for medical issues. (Id., Moriarty Aff. ¶ 2.) If an inmate is unable to

10

resolve a complaint through informal means, he may submit an Informal Complaint on an

11

Inmate Letter to the Correctional Officer (CO) III in his unit within 10 work days from the

12

date of the action that caused the complaint. (Id., Ex. 1, DO 802.02 § 1.2.) If the complaint

13

cannot be resolved informally, the inmate may submit a formal inmate grievance to the

14

Grievance Coordinator/CO IV within 5 work days from the date the inmate receives a

15

response from the CO III. (Id., DO 802.03 § 1.1.) The CO IV immediately forwards the

16

form to the Facility Health Administrator (FHA). (Id., Ex. 2, DI 287 at DO 802.04 § 1.1.)

17

Within 15 work days following the receipt of the formal inmate grievance, the FHA

18

investigates the complaint; if the grievance cannot be resolved by a written response, the

19

FHA or designee meets with the inmate prior to preparing a written response and prepares

20

a written response. (Id., DI 287 at DO 802.04 §§ 1.1.1 - 1.1.1.6.)

21

If the inmate receives an unfavorable response from the FHA, he may appeal to the

22

Assistant Director for Health Services. (Id., Ex. 1, DO 802.05 § 1.1 and E. 2, DI 287 at DO

23

802.06 § 1.1.) Inmates may not file an appeal to the Director until the grievance procedure

24

within their assigned unit and institution has been exhausted. (Id., Ex. 2, DI 287 at DO

25

802.06 § 1.1.) The Assistant Director for Health Services reviews the medical grievances

26

in consultation with Department physicians and contracted physicians as necessary and

27

prepares a response for the Director’s signature providing the rationale used to reach the

28

decision. (Id., DI 287 at DO 802.06 § 1.2 - § 1.3.) The Director’s response is final, thereby
-3-

1

exhausting available ADC administrative remedies for medical grievances. (Id., DI 287 at

2

DO 802.06 § 1.4.) Defendant contends that failure to appeal an issue through to the

3

Director’s level constitutes a failure to exhaust the administrative remedies provided by the

4

ADC grievance process. (Id., Moriarty Aff. ¶ 3.)

5

The grievance process for standard grievances is similar except that the formal

6

grievance is responded to by the deputy warden—DI 287 at DO 802.03 § 1.5, and there are

7

two levels of grievance appeals: the first grievance appeal is submitted to the warden—DI

8

287 at DO 802.05 § 1.1, and the final appeal is to the Director—DI 287 at DO 802.07 § 1.1.

9

(Id., Ex. 2.)

10

Defendant asserts that according to the Medical Appeal Log and Medical Grievance

11

Appeal File, Plaintiff did not file a medical grievance appeal to the Director regarding the

12

claims against Barcklay in the Complaint. (Id., Moriarty Aff. ¶¶ 5-6.) She argues that

13

because Plaintiff did not fully grieve his issue, the claim is barred by the PLRA and must be

14

dismissed. (Doc. 7 at 6.)

15

2.

Plaintiff

16

Plaintiff opposes the motion and argues that he tried to resolve the matter but got no

17

responses to his grievances. (Doc. 9, Ex. 1.) When he received no responses, he sent all his

18

grievances to ADC Director Ryan, with no response. (Id., Ex. 2.) On April 25, 2011,

19

Plaintiff sent all his grievances to the Attorney General’s Risk Management office, with no

20

response. (Id. at 1-2, Ex. 3.) Plaintiff was transferred to the ADC Kingman Complex and

21

had a family member send a letter of transfer and copies of all the grievances and medical

22

records to the Attorney General’s Office, Risk Management, and Governor Jan Brewer’s

23

office. (Id. at 2, Ex. 4.) Plaintiff received no response and filed his lawsuit. He asks to

24

Court to order the Yuma Complex to release all documents and reports for the date of

25

November 7, 2010, with the names of all officers involved. (Id.)

26

3.

Reply

27

Defendant replies that because the assault occurred on December 7, 2010, Plaintiff

28

had until December 21, 2010 to submit his informal resolution; the resolution attempt dated
-4-

1

December 25, 2010 was untimely.3 (Doc. 11 at 2.) Defendant further argues that even if the

2

informal resolution was timely, the grievance was untimely because the CO III had 15 work

3

days to respond to the informal resolution and then Plaintiff had 5 work days to submit the

4

formal grievance. (Id.) Expiration of any time limit for a response at any stage in the

5

process entitles the grievant to move to the next step in the process—802.01 § 1.11. Plaintiff

6

did not submit an inmate grievance until February 2011. (Id. at 3, Osorio Decl. ¶ 3.)

7

Defendant contends that before a response was issued to the grievance, Plaintiff submitted

8

an inmate letter withdrawing the grievance, which was so noted in the Grievance Log. (Id.

9

at 3, Osorio Decl. ¶ 4.) In March 2011, Plaintiff advised that he wanted to reinstate the

10

grievance and the Grievance Coordinator advised Plaintiff that he would have to restart the

11

process.

12

Director.

(Id. at 3, Osorio Decl. ¶ 5.) Plaintiff responded that he would go directly to the

13

On March 16, 2011, Associate Deputy Warden Bayles received an inmate grievance

14

from Plaintiff addressed to “Director of Prisons for ADOC Charles Ryan.” (Id. at 3, Osorio,

15

Decl. ¶ 6.) It was not processed because Plaintiff did not follow the proper procedure by

16

restarting the inmate grievance process with a grievance addressed to the Grievance

17

Coordinator. To the extent Plaintiff was attempting to appeal his original inmate grievance,

18

the Director’s level was not the next step in the inmate grievance procedure. (Id. at 3.)

19

Defendant asserts that in that case, the appropriate next step was an appeal to the warden

20

within 5 work days. Or, if Plaintiff’s inmate grievance was processed as a medical

21

grievance1 and Plaintiff received an unfavorable response from the FHA, or no response, he

22

would appeal to the Assistant Director for Health Services, not the Director. (Id. at 3-4.)

23

According to Defendant, the Unit Coordinator Grievance Log does not reflect that Plaintiff’s

24

initial grievance was a medical grievance; the focus of Plaintiff’s informal resolution attempt

25

was an alleged breach of security, with only a mention of a delay in medical treatment. (Id.

26
27
28

3

In support of the reply, Defendant submits the declarations of Teru Osorio, Associate
Deputy Warden at Yuma Complex (Doc. 11, Ex. A, Osorio Decl. ¶ 1) and Aurora Aguilar,
ADC Hearing Officer (id., Ex. C. Aguilar Decl. ¶ 1.)
-5-

1

at 4, n. 1; ref. Doc. 9, Ex. 1.) Accordingly, his inmate grievance would not have followed

2

the medical grievance process.

3

Defendants asserts that review of the non-medical and medical inmate grievance

4

appeal logs at the Director’s level and unit level reveals that Plaintiff did not file an inmate

5

grievance appeal to the Director’s level concerning the allegations set forth in Count II of his

6

Complaint. (Doc. 11 at 4, Ex. C, Aguilar Decl. ¶ 6; Doc. 7, Moriarty Aff. ¶¶ 5-6.) Plaintiff’s

7

alleged submissions to the Attorney General’s Office, the Arizona Department of

8

Administration, Risk Management, and the Governor’s Office, do not comply with ADC’s

9

inmate grievance procedure. (Id. at 5.)

10

C.

Analysis

11

The Court finds that Plaintiff failed to exhaust administrative remedies. Defendant

12

provides evidence of an available administrative remedy and Plaintiff’s failure to properly

13

exhaust under that process, and Plaintiff fails to provide a legally sufficient excuse for his

14

failure to exhaust. But Defendant’s briefing was not particularly helpful to resolution of the

15

issue.

16

Defendant’s motion sets forth the process for a medical grievance, but in the reply

17

Defendant informs the Court that the grievance in question was not processed as a medical

18

grievance; Defendant argues that the focus of the informal resolution was the assault, not the

19

medical care. Defendant also argues that the informal resolution was not timely because it

20

had to be filed within 15 work days of the assault.

21

The Court has reviewed the informal resolution, dated December 25, 2010, and

22

directed to the Deputy Warden. Parts of it are very difficult to read, but it complains about

23

the assault and appears to complain about not receiving medical attention for a period,

24

although the latter claim is less clear. To the extent that the complaint was about not

25

receiving medical attention after the assault—the issue in Count II, the informal resolution

26

would not have to be filed within 10 work days of the assault. The Court finds that insofar

27

as the informal resolution complains about the medical care, it was timely. But it was not

28

submitted to the CO III.
-6-

1

According to Defendant, the grievance was submitted in February 2011. The

2

document provided to the Court is illegible, although the date appears to be February 14,

3

2011, and Defendant does not specify when in February the grievance was submitted. (Doc.

4

9, Ex. 1.) The CO III had 15 work days from the date of the informal resolution—December

5

25—to provide a response and Plaintiff had 5 work days from the response to file the

6

grievance. Expiration of any time limit for a response at any stage in the process entitles the

7

inmate to proceed to the next step in the process—DO 802.01 § 1.11. Therefore, the

8

grievance—even if filed on February 1—was untimely.

9

Defendant now claims that Plaintiff withdrew his grievance before a response was

10

issued and then in March advised that he wanted to reinstate the grievance and would go

11

directly to the Director. Plaintiff submitted a grievance, dated March 15, 2011; it is directed

12

to Director Ryan. (Doc. 9, Ex. 2.) In it, Plaintiff complains about the alleged breach of

13

security and assault and about the lack of medical care. As to medical care, he said he was

14

denied medical care other than an ice pack and a bandage for his ankle until he was taken to

15

hospitals on December 30, 2010, admitted to the trauma unit, and eventually operated on.

16

As Defendant argues, if Plaintiff was attempting to appeal the original inmate

17

grievance, the next step in the standard grievance procedure would be an appeal to the

18

warden, not the Director—DO 802.04 §1.1 and DI 287 802.05 1.1—or if Plaintiff was

19

following the medical grievance procedure and he received an unfavorable or no response

20

FHA, the appeal would be directed to the Assistant Director for Health Services, not the

21

Director. (DO 802.04 § 1.6 and DI 287 at DO 802.06 § 1.1.) Either way Plaintiff failed to

22

properly exhaust his administrative remedies in accordance with the applicable ADC rules.

23

See Ngo, 548 U.S. at 92.

24

In addition, Plaintiff submits a letter from family friend Helen Sitgraves, dated May

25

5, 2011, addressed to the Office of the Attorney General, forwarding a Notice of Claim and

26

asserting that on April 26, Plaintiff was in a CO IV’s office and saw the original grievance

27

forms in the officer’s desk and that the officer said he had e-mailed the forms to Ryan but

28

received no response. (Doc. 9, Ex. 4.) Plaintiff also submits to the Court a Notice of Claim,
-7-

1

dated April 25, 2011. (Id. Ex. 3.) But as Defendant contends, neither of these actions is a

2

step in the ADC grievance procedure, and they do not satisfy the grievance process for the

3

constitutional claim alleged in Count II.4

4

The Court will grant Barcklay’s motion and dismiss Count II without prejudice for

5

failure to properly exhaust administrative remedies.

6

IT IS ORDERED:

7
8
9
10

(1) The reference to the Magistrate Judge is withdrawn as to Defendant Barcklay’s
Motion to Dismiss Count II (Doc. 7).
(2) Defendant Barcklay’s Motion to Dismiss Count II (Doc. 7) is granted, and
Barcklay is dismissed and Count II is dismissed without prejudice.

11

(3) The remaining claim is Count I against the Doe Defendants.

12

DATED this 10th day of August, 2012.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
4

28

A Notice of Claim is required for a state-law claim against a public entity or public
employee. Ariz. Rev. Stat. § 12-821.01(A).
-8-