Henderson v. Arpaio
Filing
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ORDER granting 19 Defendant's Motion to Dismiss; the Second Amended Complaint is dismissed without prejudice. The Clerk must enter judgment of dismissal accordingly. Signed by Judge G Murray Snow on 8/22/13.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Tommie Lee Henderson, Jr.,
Plaintiff,
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vs.
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Joseph M. Arpaio,
Defendant.
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No. CV 12-1438-PHX-GMS (JFM)
ORDER
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Plaintiff Tommie Lee Henderson, Jr., brought this civil rights action under 42 U.S.C.
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§ 1983 against Maricopa County Sheriff Joseph M. Arpaio (Doc. 14). Before the Court is
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Defendant’s Motion to Dismiss for failure to exhaust administrative remedies (Doc. 19), to
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which Plaintiff did not respond.
The Court will grant Defendant’s motion and terminate the action.
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I.
Background
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Plaintiff’s claim arose during his confinement at the Maricopa County Fourth Avenue
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Jail (Doc. 14 at 1). In his Second Amended Complaint, Plaintiff alleged that his rights under
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the Americans with Disabilities Act (ADA) were violated when jail staff denied him
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assistance in obtaining his attorney’s phone number (id. (Doc. 14 at 3-6)1). Plaintiff averred
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that he suffers from memory problems as a result of a learning disability, diagnosed chemical
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imbalance, and a head injury. Plaintiff stated that upon his arrest, a police officer assisted
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Additional citation refers to the page number in the Court’s Case
Management/Electronic Case Filing system.
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Plaintiff in obtaining the phone number of his attorney and wrote it on a piece of paper.
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According to Plaintiff, when he was booked into the jail, his personal possessions, including
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the phone number, were confiscated. Plaintiff claimed that jail staff refused to assist him in
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obtaining the phone number and, consequently, he was excluded from using the phones,
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canteen, and mail because he could not call an outside party to set up the required pre-pay
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services. Plaintiff alleged that he was therefore denied participation in the jail’s services
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because of his disability (id.).
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Defendant now moves to dismiss the Second Amended Complaint on the grounds that
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(1) Plaintiff failed to exhaust administrative remedies as required under the Prison Litigation
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Reform Act (PLRA), 42 U.S.C. § 1997e(a), and (2) he failed to state a claim under the ADA
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(Doc. 19).
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II.
Motion to Dismiss
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In support of the exhaustion argument, Defendant submits the affidavit of Lourdes
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Hernandez, a Sergeant at the Maricopa County Sheriff’s Office (MCSO) Bureau Hearing
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Unit (id., Ex. A, Hernandez Aff. ¶ 1). Hernandez states that the inmate grievance procedure
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is set forth in MCSO Policy DJ-3, which provides a three-tiered system: (1) the initial
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grievance and decision by the Bureau Hearing Officer; (2) the Institutional appeal; and (3)
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the External appeal (id. ¶¶ 3-4). Hernandez also states that inmates are notified of these
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grievance procedures when they receive a copy of the “MCSO Rules and Regulations for
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Inmates” and the grievance steps are set forth on the face of the inmate grievance form (id.
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¶¶ 4-5).
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Hernandez explains that under Policy DJ-3, an inmate must initiate a grievance within
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48 hours of the event giving rise to the complaint (id. ¶ 8). She avers that she searched the
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grievance records maintained by MCSO for Plaintiff and found that he filed three grievances
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during his incarceration (id. ¶¶ 6-7). One grievance filed by Plaintiff related to his complaint
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that he was unable to make calls because a phone number given to him had been taken away
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(id., Attach. 4). This grievance, which is attached to Hernandez’s affidavit, was submitted
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on May 8, 2012, and Plaintiff thereafter filed an Institutional appeal and indicated that he
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sought to forward his complaint to the External Referee (id. (Doc. 19-1 at 24-28)).
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Defendant relies on this evidence to argue that Plaintiff failed to timely exhaust
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administrative remedies (Doc. 19 at 4). Defendant asserts that Plaintiff was booked into the
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jail on March 20, 2012, and that, according to his allegations, he claimed that his personal
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possessions, including the telephone number, were confiscated on that date (id.). Defendant
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contends that, under the MCSO grievance policy, Plaintiff was required to submit a grievance
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about this claim within 48 hours of March 20, 2012, but failed to do so (id.). Defendant
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notes that in Sergeant Hadler’s response to Plaintiff’s grievance, he informed Plaintiff that
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the grievance was untimely and should not have been accepted (id., citing Ex. A, Attach. 4
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(Doc. 19-1 at 26)).
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Defendant also contends that Plaintiff failed to file an External grievance; therefore,
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he did not complete the administrative remedies and did not exhaust his complaint (id. at 6).
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For these reasons, Defendant requests that Plaintiff’s claim be dismissed (id. at 6-7).
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The Court issued the Notice required under Wyatt v. Terhune, 315 F.3d 1108, 1120
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n. 14 (9th Cir. 2003), which informed Plaintiff of his obligation to respond and the evidence
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necessary to successfully rebut Defendant’s contentions (Doc. 21). Shortly thereafter,
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Plaintiff filed a Notice of Change of Address indicating his transfer to the Arizona
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Department of Corrections (Doc. 23). The Court therefore extended the time for Plaintiff to
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respond to Defendant’s motion (Doc. 25). Plaintiff then filed a motion seeking a further
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extension of time to file his response (Doc. 27). The Court granted Plaintiff’s motion and
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set a response deadline of July 8, 2013 (Doc. 28).
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To date, Plaintiff has not filed a response.
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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. There can be no absence of exhaustion unless a defendant demonstrates that
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applicable relief remained available in the grievance process. Brown v. Valoff, 422 F.3d
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926, 936-7 (9th Cir. 2005). Because exhaustion is a matter of abatement in an unenumerated
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Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact.
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Wyatt, 315 F.3d at 1119-20. And when considering disputed issues of fact, a court has broad
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discretion as to the method used in resolving the dispute because “there is no right of jury
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trial” as to an issue arising in a pre-answer motion. Ritza v. Int’l Longshoremen’s &
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Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). If a court
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finds that the plaintiff failed to exhaust administrative remedies, the proper remedy is
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dismissal without prejudice. Wyatt, 315 F.3d at 1120.
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B.
Analysis
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As stated, Defendant must demonstrate that there were remedies available to Plaintiff.
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See id. at 1119; see also Brown, 422 F.3d at 936-37. Defendant submits evidence that the
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MCSO has an established grievance system, and, in his Second Amended Complaint,
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Plaintiff acknowledged that administrative remedies were available at the jail (Doc. 19, Ex.
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A, Hernandez Decl. ¶¶ 3-4; Attach. 1; Doc. 14 at 3)).
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Defendant argues that Plaintiff’s May 2012 grievance was untimely and cannot serve
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to exhaust a claim that arose on March 20, 2012, the date Plaintiff was booked into jail (Doc.
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19 at 5). The Court rejects this argument for two reasons. First, Plaintiff’s claim is not that
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his personal possessions and phone number were wrongly confiscated the day he was booked
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into the jail; rather, the crux of his claim is jail staff’s alleged failure to assist Plaintiff in
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obtaining the confiscated phone number (Doc. 14). The allege failure to assist Plaintiff
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occurred after his booking date. The exact dates staff allegedly failed to assist Plaintiff are
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not clear from the record; thus, the 48-hour time frame in which to grieve his claim cannot
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be determined.
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Second, and more importantly, jails officials addressed Plaintiff’s grievance on the
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merits. Although Sergeant Hadler mentioned in his response that Plaintiff’s grievance was
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not timely and should not have been accepted, he nonetheless addressed Plaintiff’s complaint
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and attempted to resolve it (id., Ex. A, Attach. 4 (Doc. 19-1 at 26)). The record also shows
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that Plaintiff appealed Sergeant Hadler’s response and the Institutional appeal was not
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rejected for untimeliness; instead, it was accepted and responded to (id. (Doc. 19-1 at 28)).
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Given that jail officials addressed Plaintiff’s grievance on the merits, the Court will not allow
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Defendant to go back now and reject it on procedural grounds.
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Defendant’s second argument for finding nonexhaustion, however, is correct.
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Defendant submits evidence that Plaintiff failed to file the final External appeal (Doc. 19, Ex.
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A, Hernandez Aff. ¶ 9). In his amended pleading, Plaintiff indicated that he initiated the
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grievance process and submitted a request for relief to the highest level (Doc. 10 at 3-5). But
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in failing to respond to Defendant’s motion, this general assertion by Plaintiff that he
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completed the grievance procedures is insufficient to overcome evidence that he failed to
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complete the final step of the grievance process. Moreover, Plaintiff was specifically advised
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that failure to respond to Defendant’s motion may be treated as a consent to granting the
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motion (Doc. 21 at 1-2).
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In light of Defendant’s evidence and Plaintiff’s failure to respond, the Court finds that
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Defendant has met his burden to show nonexhaustion, and the Motion to Dismiss will be
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granted on this basis.2
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The Court notes that Defendant’s second argument for dismissal—that Plaintiff fails
to state a claim under the ADA—has no merit. The Court already determined on screening,
under the same standard applied on a Rule 12(b)(6) motion to dismiss, that Plaintiff
sufficiently stated a claim under the ADA (Doc. 16). See 28 U.S.C. § 1915A(b) (“fail[ure]
to state a claim upon which relief may be granted”). Defendant presents nothing in his
Motion to Dismiss to warrant reconsideration of the Court’s Screening Order.
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IT IS ORDERED:
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(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion to
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Dismiss (Doc. 19).
(2) Defendant’s Motion to Dismiss (Doc. 19) is granted; the Second Amended
Complaint is dismissed without prejudice for failure to exhaust administrative remedies.
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(3) The Clerk of Court must enter judgment of dismissal accordingly.
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DATED this 22nd day of August, 2013.
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