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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arrington Miles Gill, Plaintiff, 10 11 vs. 12 John D. Ferguson, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-02707-PHX-FJM ORDER 15 16 17 Plaintiff Arrington Miles Gill, an inmate at the La Palma Correctional Center in Eloy, 18 Arizona, brought this pro se civil rights action under 42 U.S.C. § 1983 against Ross Forrest, 19 a correctional officer employed by Corrections Corporation of America. Before the court is 20 defendant Forrest’s Motion to Dismiss for failure to exhaust administrative remedies (doc. 21 27), plaintiff’s response (doc. 32), and defendant’s reply (doc. 34). 22 I. Notice 23 In his Second Amended Complaint, plaintiff alleges that defendant acted with 24 deliberate indifference to his safety in violation of the Eighth Amendment when defendant 25 failed to properly place him in a seatbelt and then drove recklessly causing injuries (doc. 22). 26 Defendant now moves to dismiss the Second Amended Complaint on the ground that 27 plaintiff failed to exhaust administrative remedies as required by the Prison Litigation 28 Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”). 1 Until recently, the Ninth Circuit held that a challenge to a prisoner’s failure to exhaust 2 under § 1997e(a) should be raised by a defendant as an “unenumerated Rule 12(b) motion.” 3 Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Accordingly, defendant quite reasonably 4 filed the pending motion as an unenumerated Rule 12(b) motion (doc. 27 at 3). We then 5 issued a Notice to Gill informing him of his obligation to respond to the motion to dismiss 6 and the consequences if the motion is granted (doc. 28, citing Wyatt, 315 F.3d 1108). 7 As noted in defendant’s Reply at 1 n.1, the Ninth Circuit recently held that the failure 8 to exhaust defense must instead be raised by a motion for summary judgment. It is no longer 9 considered a matter of abatement to be raised in an unenumerated Rule 12(b) motion. Albino 10 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014), overruling Wyatt, 315 F.3d at 1119-20. We 11 are therefore presented with a preliminary issue of whether plaintiff received sufficient notice 12 of the requirements and effects of defendant’s current motion. 13 In Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), the Ninth Circuit held that a pro 14 se prisoner is entitled to fair notice of the requirements needed to defeat a defendant’s motion 15 for summary judgment. Because of the “unique handicaps of incarceration,” affirmative 16 notice is required to ensure that “a prisoner’s access to the courts is adequate, effective, and 17 meaningful.” Id. at 958 (citation omitted). Rand described in detail the necessary elements 18 of the requisite written notice. A prisoner must be informed “in ordinary, understandable 19 language” (1) of his rights and obligations under Rule 56; (2) of his right to file counter- 20 affidavits or other responsive evidentiary materials, (3) that failure to file responsive 21 evidentiary materials may result in the moving party’s evidence being taken as true and final 22 judgment entered against him; (4) that losing on summary judgment will end the case without 23 a trial; and (4) of any local rules providing additional requirements. Id. at 960-61. 24 In Wyatt, the Ninth Circuit extended the Rand notice requirements to what the court 25 described as an “unenumerated Rule 12(b) motion” to dismiss for failure to exhaust 26 administrative remedies. 315 F.3d at 1119. The court recognized that the unenumerated 27 Rule 12(b) procedure for “look[ing] beyond the pleadings to a factual record in deciding the 28 motion to dismiss for failure to exhaust” is “a procedure closely analogous to summary -2- 1 judgment.” Id. at 1120 n.14. The court required a Rand notice in order to “assure that [the 2 prisoner] has fair notice of his opportunity to develop a record.” Id.; Woods, II v. Carey, 684 3 F.3d 934, 938 (9th Cir. 2012). 4 The Notice given to plaintiff in this case advises him that defendant has filed a motion 5 to dismiss, that plaintiff must timely respond to all motions, that failure to respond could be 6 treated as a consent to the granting of the motion, that if the motion is granted, the case will 7 end. (Doc. 28). The Notice further provides that because the motion to dismiss seeks 8 dismissal of the Complaint for failure to exhaust administrative remedies, the Court may 9 consider sworn declarations or other admissible documentary evidence beyond the 10 Complaint, and that if defendant produces admissible evidence demonstrating a failure to 11 exhaust, plaintiff must “produce copies of your grievances and grievance appeals or other 12 admissible evidence sufficient to show that you did exhaust all available administrative 13 remedies.” Id. at 2. This Notice satisfies each of the Rand requirements.1 14 The Albino case does not substantively alter the Rand/Wyatt notice requirements. 15 Indeed, the Albino court recognized that “it may be more a matter of a change of 16 nomenclature than of practical operation.” Albino, 747 F.3d at 1166. Accordingly, we 17 conclude that, notwithstanding the intervening case law, plaintiff has received sufficient 18 notice of the opportunity to develop a record and the requirements needed to defeat the 19 defendant’s motion. It would be a triumph of form over substance to delay the litigation or 20 increase the parties’ costs by requiring a second round of notice and memoranda with no 21 attendant benefit. II. Exhaustion 22 23 Proper exhaustion of available administrative remedies is mandatory under the PLRA. 24 Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 2382 (2006). Proper exhaustion requires 25 that prisoners “complete the administrative review process in accordance with the applicable 26 1 27 28 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. -3- 1 procedural rules,” id. at 88, 126 S. Ct. at 2384, that are defined not by the PLRA, but by the 2 prison grievance process itself, Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 922 (2007). 3 “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA 4 to ‘properly exhaust.’” Id. at 218, 127 S. Ct. at 922-23. “The level of detail necessary in a 5 grievance to comply with the grievance procedures will vary from system to system and 6 claim to claim, but it is the prison’s requirements, and not the PLRA, that define the 7 boundaries of proper exhaustion.” Id. at 218, 127 S. Ct. at 923. 8 Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”) 9 inmate currently incarcerated at the La Palma Correctional Center (“LPCC”) in Eloy, 10 Arizona. The administrative grievance process for all CDCR inmates is set forth in Cal. 11 Code Regs. tit. 15, § 3084, MTD Ex. 1, ex. A, and further defined by Contract Beds Unit 12 (CBU) Operating Procedure # 510, id. at ex. B.2 Depending on the nature of the grievance, 13 an inmate must first submit his complaint on either a CDCR Form 602 (Appeal Form), or 14 CDCR Form 602-HC (Health Care Appeal Form). 15 There are three levels of review for both healthcare and non-healthcare appeals. The 16 initial form must be submitted within 30 days of the occurrence of the event. If the first level 17 appeal is denied or otherwise not resolved to the inmate’s satisfaction, a second level appeal 18 can be filed. If the second level appeal is not resolved to the inmate’s satisfaction, he may 19 file a third level appeal. If an inmate fails to follow the appeals procedure outlined in § 3084, 20 or omits any part of the process, he has not exhausted the administrative remedies available 21 to him. Cal. Code Regs. tit. 15, § 3084.1. An appeal may be rejected for a variety of 22 specified reasons, including “[t]he inmate has not submitted his appeal on the departmentally 23 approved appeal forms.” Id. at § 3084.6(b)(14). 24 The tracking of the grievance review depends upon the nature of the grievance. A 25 non-healthcare appeal must be filed on Form 602, is sent to the CBU Appeals Coordinator, 26 2 27 28 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. -4- 1 and is processed through the Inmate Appeals Tracking System. OP 510 (doc. 27-1 at 27). 2 In contrast, a healthcare appeal must be filed on Form 602-HC and is sent to the “California 3 Correctional Health Care Services (CCHCS) Private Prison Compliance and Monitoring Unit 4 (PPCMU) Health Care Appeals Coordinator (HCAC)” and is processed through “the Health 5 Care Appeal Tracking System.” Id. 6 Plaintiff completed and submitted a 602-HC–Health Care Appeal Form. He asserted 7 that defendant Forrest “violently slammed on brakes and I was violently thrown forward into 8 the grill gate, hitting head and neck.” Id. Plaintiff requested “[c]omplete a medical 9 examination, including X-Rays and MRI of neck & spinal column for further injuries, and 10 if necessary compensation for damages.” Id. Plaintiff’s 602-HC grievance was screened and 11 processed as a healthcare appeal, responding to plaintiff’s specific request for medical 12 services. MTD, Ex. 1 ¶ 49. Plaintiff was informed at each level of the appeals process that 13 “[m]onetary compensation is beyond the scope of the appeals process,” and will not be 14 addressed. Response, Ex. A. Because plaintiff filed a medical appeal, the CDCR Litigation 15 Coordinator was not alerted to plaintiff’s claim for damages. MTD, Ex. 2. 16 Plaintiff’s healthcare appeal was assigned to Health Services Coordinator Burnett. 17 (Response, Ex. A at 2, 7). Plaintiff’s healthcare appeal was granted in part when he was 18 referred to a medical specialist for treatment. Id. During the second level appeal, plaintiff 19 was interviewed by a registered nurse and “allowed the opportunity to fully explain [his] 20 appeal issue and to present any new or additional information relative to [his] appeal.” Id. 21 at 8. Throughout the appeals process, plaintiff did not provide additional facts indicating that 22 he was alleging wrongdoing against Forrest, but only repeated that he was seeking medical 23 care and compensation. There was no mention of misconduct against Forrest, no mention 24 of a seatbelt, and no indication that plaintiff was asserting that his rights had been violated. 25 On its face, Form 602-HC provides that it should be used to appeal any decision or 26 action of the “California Prison Health Care Services.” MTD, ex. G. Form 602-HC further 27 instructs the inmate to “send this appeal and any supporting documents to the Health Care 28 Appeals Coordinator.” Id. Because plaintiff requested medical treatment on a Health Care -5- 1 Appeal form, his grievance was processed as a request for medical treatment through the 2 Health Care Appeal Tracking System. Neither the Form 602-HC, nor the nature of the relief 3 sought, alerted LPCC to the facts underlying the Eighth Amendment claim now asserted 4 against Forrest. 5 necessary,” on a healthcare grievance form, MTD, ex. G, not only failed to comply with the 6 prison’s grievance procedures, but effectively denied LPCC an opportunity to address 7 Forrest’s alleged misconduct or LPCC’s liability for damages. See Woodford, 548 U.S. at 8 89, 126 S. Ct. at 2385. Plaintiff’s ambiguous reference to “compensation for damages” “if 9 We disagree with plaintiff’s argument that Operating Procedure 510 does not provide 10 a grievance process “when a CDCR prisoner is injured as a passenger in a vehicle owned and 11 or operated by a CCA employee.” Response at 5. OP 510 broadly provides that “[a]ny 12 inmate/parolee under the jurisdiction of the California Department of Corrections and 13 Rehabilitation (CDCR) or contract facilities may appeal any departmental or facility policy, 14 decision, action, condition, or omission which they can demonstrate as having a material 15 adverse effect upon their welfare.” (Doc. 27-1 at 27). An alleged failure by a prison 16 employee to put plaintiff in a seatbelt, driving recklessly and causing injuries, clearly falls 17 within this description. 18 More specifically, plaintiff’s claim involves a “Staff Complaint” against Forrest. 19 Under OP 510, “staff misconduct” means “staff behavior that violates or is contrary to law, 20 regulation, policy, procedure, or an ethical or professional standard.” (Doc. 27-1 at 34). 21 Failure to secure a prisoner in a seatbelt during transport arguably violates a regulation, 22 policy or procedure. Plaintiff’s claim against Forrest is a “Staff Complaint” under OP 510, 23 but plaintiff did not pursue this claim through this administrative process as required. 24 According to the California Code of Regulations, if an inmate fails to follow the 25 appeals procedures outlined in § 3084, or omits any part of it, he has not exhausted the 26 administrative remedies available to him. Cal. Code Regs. tit. 15, § 3084.1. Because 27 plaintiff failed to satisfy the grievance procedures established by the prison regulations, and 28 thereby effectively denied LPCC of the opportunity to consider the 8th Amendment claim -6- 1 administratively, we conclude that he has not exhausted his administrative remedies. 2 III. 3 IT IS ORDERED GRANTING defendant’s motion for summary judgment (doc. 27). 4 DATED this 11th day of June, 2014. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?