Gill v. Ferguson et al

Filing 52

ORDER granting defendant's 27 Motion for Summary Judgment. (See document for further details). Signed by Senior Judge Frederick J Martone on 6/11/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arrington Miles Gill,
Plaintiff,

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vs.

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John D. Ferguson, et al.,
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Defendants.
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No. CV-12-02707-PHX-FJM
ORDER

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Plaintiff Arrington Miles Gill, an inmate at the La Palma Correctional Center in Eloy,

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Arizona, brought this pro se civil rights action under 42 U.S.C. § 1983 against Ross Forrest,

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a correctional officer employed by Corrections Corporation of America. Before the court is

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defendant Forrest’s Motion to Dismiss for failure to exhaust administrative remedies (doc.

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27), plaintiff’s response (doc. 32), and defendant’s reply (doc. 34).

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I. Notice

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In his Second Amended Complaint, plaintiff alleges that defendant acted with

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deliberate indifference to his safety in violation of the Eighth Amendment when defendant

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failed to properly place him in a seatbelt and then drove recklessly causing injuries (doc. 22).

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Defendant now moves to dismiss the Second Amended Complaint on the ground that

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plaintiff failed to exhaust administrative remedies as required by the Prison Litigation

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Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”).

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Until recently, the Ninth Circuit held that a challenge to a prisoner’s failure to exhaust

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under § 1997e(a) should be raised by a defendant as an “unenumerated Rule 12(b) motion.”

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Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Accordingly, defendant quite reasonably

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filed the pending motion as an unenumerated Rule 12(b) motion (doc. 27 at 3). We then

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issued a Notice to Gill informing him of his obligation to respond to the motion to dismiss

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and the consequences if the motion is granted (doc. 28, citing Wyatt, 315 F.3d 1108).

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As noted in defendant’s Reply at 1 n.1, the Ninth Circuit recently held that the failure

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to exhaust defense must instead be raised by a motion for summary judgment. It is no longer

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considered a matter of abatement to be raised in an unenumerated Rule 12(b) motion. Albino

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v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014), overruling Wyatt, 315 F.3d at 1119-20. We

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are therefore presented with a preliminary issue of whether plaintiff received sufficient notice

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of the requirements and effects of defendant’s current motion.

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In Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), the Ninth Circuit held that a pro

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se prisoner is entitled to fair notice of the requirements needed to defeat a defendant’s motion

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for summary judgment. Because of the “unique handicaps of incarceration,” affirmative

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notice is required to ensure that “a prisoner’s access to the courts is adequate, effective, and

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meaningful.” Id. at 958 (citation omitted). Rand described in detail the necessary elements

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of the requisite written notice. A prisoner must be informed “in ordinary, understandable

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language” (1) of his rights and obligations under Rule 56; (2) of his right to file counter-

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affidavits or other responsive evidentiary materials, (3) that failure to file responsive

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evidentiary materials may result in the moving party’s evidence being taken as true and final

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judgment entered against him; (4) that losing on summary judgment will end the case without

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a trial; and (4) of any local rules providing additional requirements. Id. at 960-61.

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In Wyatt, the Ninth Circuit extended the Rand notice requirements to what the court

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described as an “unenumerated Rule 12(b) motion” to dismiss for failure to exhaust

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administrative remedies. 315 F.3d at 1119. The court recognized that the unenumerated

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Rule 12(b) procedure for “look[ing] beyond the pleadings to a factual record in deciding the

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motion to dismiss for failure to exhaust” is “a procedure closely analogous to summary
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judgment.” Id. at 1120 n.14. The court required a Rand notice in order to “assure that [the

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prisoner] has fair notice of his opportunity to develop a record.” Id.; Woods, II v. Carey, 684

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F.3d 934, 938 (9th Cir. 2012).

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The Notice given to plaintiff in this case advises him that defendant has filed a motion

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to dismiss, that plaintiff must timely respond to all motions, that failure to respond could be

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treated as a consent to the granting of the motion, that if the motion is granted, the case will

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end. (Doc. 28). The Notice further provides that because the motion to dismiss seeks

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dismissal of the Complaint for failure to exhaust administrative remedies, the Court may

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consider sworn declarations or other admissible documentary evidence beyond the

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Complaint, and that if defendant produces admissible evidence demonstrating a failure to

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exhaust, plaintiff must “produce copies of your grievances and grievance appeals or other

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admissible evidence sufficient to show that you did exhaust all available administrative

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remedies.” Id. at 2. This Notice satisfies each of the Rand requirements.1

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The Albino case does not substantively alter the Rand/Wyatt notice requirements.

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Indeed, the Albino court recognized that “it may be more a matter of a change of

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nomenclature than of practical operation.” Albino, 747 F.3d at 1166. Accordingly, we

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conclude that, notwithstanding the intervening case law, plaintiff has received sufficient

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notice of the opportunity to develop a record and the requirements needed to defeat the

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defendant’s motion. It would be a triumph of form over substance to delay the litigation or

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increase the parties’ costs by requiring a second round of notice and memoranda with no

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attendant benefit.
II. Exhaustion

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Proper exhaustion of available administrative remedies is mandatory under the PLRA.

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Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 2382 (2006). Proper exhaustion requires

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that prisoners “complete the administrative review process in accordance with the applicable

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We note that the typical Rand notice includes instructions regarding LRCiv 56.1(b)
and the need to file a separate statement of facts. A separate statement of facts is not needed
in this case and the requirement is therefore waived. See LRCiv 83.6.
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procedural rules,” id. at 88, 126 S. Ct. at 2384, that are defined not by the PLRA, but by the

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prison grievance process itself, Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 922 (2007).

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“Compliance with prison grievance procedures, therefore, is all that is required by the PLRA

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to ‘properly exhaust.’” Id. at 218, 127 S. Ct. at 922-23. “The level of detail necessary in a

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grievance to comply with the grievance procedures will vary from system to system and

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claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

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boundaries of proper exhaustion.” Id. at 218, 127 S. Ct. at 923.

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Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”)

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inmate currently incarcerated at the La Palma Correctional Center (“LPCC”) in Eloy,

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Arizona. The administrative grievance process for all CDCR inmates is set forth in Cal.

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Code Regs. tit. 15, § 3084, MTD Ex. 1, ex. A, and further defined by Contract Beds Unit

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(CBU) Operating Procedure # 510, id. at ex. B.2 Depending on the nature of the grievance,

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an inmate must first submit his complaint on either a CDCR Form 602 (Appeal Form), or

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CDCR Form 602-HC (Health Care Appeal Form).

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There are three levels of review for both healthcare and non-healthcare appeals. The

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initial form must be submitted within 30 days of the occurrence of the event. If the first level

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appeal is denied or otherwise not resolved to the inmate’s satisfaction, a second level appeal

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can be filed. If the second level appeal is not resolved to the inmate’s satisfaction, he may

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file a third level appeal. If an inmate fails to follow the appeals procedure outlined in § 3084,

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or omits any part of the process, he has not exhausted the administrative remedies available

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to him. Cal. Code Regs. tit. 15, § 3084.1. An appeal may be rejected for a variety of

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specified reasons, including “[t]he inmate has not submitted his appeal on the departmentally

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approved appeal forms.” Id. at § 3084.6(b)(14).

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The tracking of the grievance review depends upon the nature of the grievance. A

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non-healthcare appeal must be filed on Form 602, is sent to the CBU Appeals Coordinator,

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Operational Procedure # 510 provides detailed guidelines for out-of-state correctional
facilities such as LPCC regarding the process for handling California inmate appeals
consistent with Cal. Code Regs. tit. 15, § 3084. MTD, Ex. 2.
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and is processed through the Inmate Appeals Tracking System. OP 510 (doc. 27-1 at 27).

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In contrast, a healthcare appeal must be filed on Form 602-HC and is sent to the “California

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Correctional Health Care Services (CCHCS) Private Prison Compliance and Monitoring Unit

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(PPCMU) Health Care Appeals Coordinator (HCAC)” and is processed through “the Health

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Care Appeal Tracking System.” Id.

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Plaintiff completed and submitted a 602-HC–Health Care Appeal Form. He asserted

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that defendant Forrest “violently slammed on brakes and I was violently thrown forward into

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the grill gate, hitting head and neck.” Id. Plaintiff requested “[c]omplete a medical

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examination, including X-Rays and MRI of neck & spinal column for further injuries, and

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if necessary compensation for damages.” Id. Plaintiff’s 602-HC grievance was screened and

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processed as a healthcare appeal, responding to plaintiff’s specific request for medical

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services. MTD, Ex. 1 ¶ 49. Plaintiff was informed at each level of the appeals process that

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“[m]onetary compensation is beyond the scope of the appeals process,” and will not be

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addressed. Response, Ex. A. Because plaintiff filed a medical appeal, the CDCR Litigation

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Coordinator was not alerted to plaintiff’s claim for damages. MTD, Ex. 2.

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Plaintiff’s healthcare appeal was assigned to Health Services Coordinator Burnett.

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(Response, Ex. A at 2, 7). Plaintiff’s healthcare appeal was granted in part when he was

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referred to a medical specialist for treatment. Id. During the second level appeal, plaintiff

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was interviewed by a registered nurse and “allowed the opportunity to fully explain [his]

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appeal issue and to present any new or additional information relative to [his] appeal.” Id.

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at 8. Throughout the appeals process, plaintiff did not provide additional facts indicating that

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he was alleging wrongdoing against Forrest, but only repeated that he was seeking medical

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care and compensation. There was no mention of misconduct against Forrest, no mention

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of a seatbelt, and no indication that plaintiff was asserting that his rights had been violated.

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On its face, Form 602-HC provides that it should be used to appeal any decision or

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action of the “California Prison Health Care Services.” MTD, ex. G. Form 602-HC further

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instructs the inmate to “send this appeal and any supporting documents to the Health Care

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Appeals Coordinator.” Id. Because plaintiff requested medical treatment on a Health Care
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Appeal form, his grievance was processed as a request for medical treatment through the

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Health Care Appeal Tracking System. Neither the Form 602-HC, nor the nature of the relief

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sought, alerted LPCC to the facts underlying the Eighth Amendment claim now asserted

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against Forrest.

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necessary,” on a healthcare grievance form, MTD, ex. G, not only failed to comply with the

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prison’s grievance procedures, but effectively denied LPCC an opportunity to address

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Forrest’s alleged misconduct or LPCC’s liability for damages. See Woodford, 548 U.S. at

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89, 126 S. Ct. at 2385.

Plaintiff’s ambiguous reference to “compensation for damages” “if

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We disagree with plaintiff’s argument that Operating Procedure 510 does not provide

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a grievance process “when a CDCR prisoner is injured as a passenger in a vehicle owned and

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or operated by a CCA employee.” Response at 5. OP 510 broadly provides that “[a]ny

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inmate/parolee under the jurisdiction of the California Department of Corrections and

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Rehabilitation (CDCR) or contract facilities may appeal any departmental or facility policy,

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decision, action, condition, or omission which they can demonstrate as having a material

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adverse effect upon their welfare.” (Doc. 27-1 at 27). An alleged failure by a prison

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employee to put plaintiff in a seatbelt, driving recklessly and causing injuries, clearly falls

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within this description.

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More specifically, plaintiff’s claim involves a “Staff Complaint” against Forrest.

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Under OP 510, “staff misconduct” means “staff behavior that violates or is contrary to law,

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regulation, policy, procedure, or an ethical or professional standard.” (Doc. 27-1 at 34).

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Failure to secure a prisoner in a seatbelt during transport arguably violates a regulation,

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policy or procedure. Plaintiff’s claim against Forrest is a “Staff Complaint” under OP 510,

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but plaintiff did not pursue this claim through this administrative process as required.

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According to the California Code of Regulations, if an inmate fails to follow the

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appeals procedures outlined in § 3084, or omits any part of it, he has not exhausted the

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administrative remedies available to him. Cal. Code Regs. tit. 15, § 3084.1. Because

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plaintiff failed to satisfy the grievance procedures established by the prison regulations, and

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thereby effectively denied LPCC of the opportunity to consider the 8th Amendment claim
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administratively, we conclude that he has not exhausted his administrative remedies.

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III.

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IT IS ORDERED GRANTING defendant’s motion for summary judgment (doc. 27).

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DATED this 11th day of June, 2014.

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