Gordon v. Ryan et al

Filing 22

ORDER The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss (Doc. 18). Defendant's Motion to Dismiss (Doc. 18 ) is granted. Count I is dismissed without prejudice for failure to exhaust; in the alternative, it is dismissed without prejudice pursuant to Local Rule of Civil Procedure 7.2(i). Count II against Pollard and Elliott remains. Signed by Senior Judge Robert C Broomfield on 8/28/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dante Shon Gordon,

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Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV 11-8153-PCT-RCB (FJM)
ORDER

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Plaintiff Dante Shon Gordon filed this civil rights action under 42 U.S.C. § 1983

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against Arizona Department of Corrections (ADC) Director Charles Ryan, Deputy Warden

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Pollard, Complex Administrator Elliott, and various John Doe Defendants (Doc. 15).1 Before

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the Court is Defendant Ryan’s Motion to Dismiss Count I (Doc. 18). Plaintiff did not

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respond to the motion.
The Court will grant the Motion to Dismiss.

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I.

Background

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Plaintiff’s claims stem from his confinement at ADC’s facility in Kingman, Arizona,

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which is operated by Management Training Corporation (Doc. 15 at 2). Plaintiff claimed

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that on May 31, 2010, he, along with 25 other African-American inmates, were attacked by

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80-100 White inmates. Additionally, four MTC officers in full riot gear stood by and

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Upon screening, the Court dismissed the State of Arizona as a Defendant (Doc. 16
at 7). Plaintiff also named Ryan’s wife for the purpose of attaching the marital community.

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watched after Pollard ordered them not to intervene. Plaintiff was seriously injured and he

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alleged that the rioting inmates were not disciplined. Plaintiff claimed that Ryan failed to

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train prison officials, developed policies and customs that allowed the uninterrupted assaults,

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and was aware of the threats to inmates’ safety at the prison, and was deliberately indifferent

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to that risk (Count I). Plaintiff further alleged that Pollard and Elliott were deliberately

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indifferent to Plaintiff’s safety during the assault (Count II). Plaintiff sought monetary

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damages and an apology (id. at 8).

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The Court found that Plaintiff’s allegations stated a claim and directed Ryan to

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respond to Count I and Pollard and Elliott to respond to Count II.2 The Court did not order

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service on the Doe Defendants and informed Plaintiff that he could seek their true identities

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through the discovery process and move to amend his pleading to name the individuals (Doc.

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16 at 7). Ryan filed a Motion to Dismiss Count I (Doc. 18).

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II.

Motion to Dismiss

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Ryan moves for dismissal on the grounds that Plaintiff failed to exhaust his

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administrative remedies as required under the Prisoner Litigation Reform Act (PLRA), 42

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U.S.C. 1997e(a), and Plaintiff fails to state a claim (id.). In support of his motion, Defendant

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submits the declaration of Aurora Aguilar, an ADC Hearing Officer, which is supported by

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ADC Department Order (DO) 802, Inmate Grievance System, effective July 13, 2009 (Doc.

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18, Ex. 1, Aguilar Decl., Attach. A). Ryan also submits the declaration of Juliet Respicio-

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Moriarty, an employee at the ADC Health Services Bureau, which is supported by DO 802,

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and Director’s Instruction (DI) 287 (id., Ex. 2, Respicio-Moriarty Decl., Attachs. A-B).

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Aguilar declares that her duties include reviewing, investigating, and tracking non-

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medical grievance appeals (Aguilar Decl. ¶ 1). DO 802 provides a five-step process to grieve

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an issue: (1) the inmate must first attempt to resolve an issue through informal means, such

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as discussion with staff; (2) if unsuccessful, the inmate must file an inmate letter; (3) if not

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satisfied with the inmate-letter response, he may file a formal grievance to the grievance

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The Court dismissed any claim arising from the Privileges and Immunities Clause
for failure to state a claim (Doc. 16 at 7).
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coordinator; (3) if not satisfied with the grievance coordinator’s response, the inmate may

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file a grievance appeal to the Warden; (4) the inmate may appeal the Warden’s response to

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the ADC Director, whose response is final (Doc. 18, Ex. 1, DO 802 §§ 802.02-802.05).

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Aguilar and Respicio-Moriarty attest that they reviewed their grievance appeal logs;

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however, there was no record that Plaintiff filed a final grievance appeal to the Director

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concerning his allegations against Ryan regarding deliberate indifference or failure to train

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(Aguilar Decl. ¶¶ 11-12; Respicio-Moriarty Decl. ¶¶ 9-10).

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Ryan submits that based on this evidence, Plaintiff failed to exhaust his administrative

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remedies for his failure to protect claim in Count I and it should therefore be dismissed

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(Doc. 18 at 6-7). Alternatively, Ryan contends that Plaintiff failed to allege a sufficient

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connection between ADC’s policies and any alleged constitutional violation (id. at 7-10).

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The Court issued an Order notifying Plaintiff of his obligation to respond to Ryan’s

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motion (Doc. 19). This Order informed Plaintiff that if Ryan’s motion is granted by the

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Court, Count I could be dismissed (id. at 1). The Order also cited Local Rule of Civil

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Procedure 7.2(i) in its entirety; this rule provides that a party’s failure to respond to a motion

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may be deemed a consent to the granting of the motion (id. at 2). LRCiv 7.2(i). Plaintiff was

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given until August 17, 2012 to respond to the Motion to Dismiss (id.).
To date, Plaintiff has not filed a response, and the time for responding has expired.

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III.

Exhaustion

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A.

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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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Legal Standard

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.

Analysis

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In his original pleading, Plaintiff indicates that administrative remedies were available

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for his claim and that he fully exhausted those remedies (Doc. 1 at 3). But Plaintiff attached

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his grievance documents to his pleading, and they do not include a final appeal to the ADC

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Director (Doc. 1, Attachs.).

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Here, the Court finds that Ryan submits evidence that a grievance system was

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available for Plaintiff’s claim in Count I (Doc. 18, Ex. 1, Aguilar Decl. ¶¶ 3-6). Further,

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Plaintiff’s pleadings confirm that he did not fully exhaust the grievance procedure. This does

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not constitute proper exhaustion. See Woodford, 548 U.S. at 90 (proper exhaustion requires

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“using all steps that the agency holds out, and doing so properly”).

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Moreover, in failing to respond to Ryan’s motion, Plaintiff did not refute evidence that

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a grievance system was available and he failed to fully avail himself of that system. On this

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record, the Court finds that Ryan has met his burden to demonstrate nonexhaustion, and the

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Motion to Dismiss Count I will be granted.

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IV.

Lack of a Response

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Alternately, the Court has the discretion under Local Rule of Civil Procedure 7.2(i)

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to grant Ryan’s motion in light of Plaintiff’s failure to respond. As stated, Plaintiff was

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specifically warned of this possibility in an Order from the Court (Doc. 19). Plaintiff was

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also previously warned that failure to comply with any of the Court’s Orders could result in

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dismissal (Docs. 10, 14).

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Failure to comply with a district court’s local rule is a proper ground for dismissal.

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). But before dismissal on this basis, the
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Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Id. at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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If the court does not consider these factors, the record may be reviewed independently on

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appeal for abuse of discretion. Henderson, 779 F.2d at 1424.

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Here, the first two factors favor dismissal. “[T]he public’s interest in expeditious

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resolution of litigation always favors dismissal,” Yourish v. Cal. Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999), and the second factor favors dismissal in most cases. Wanderer v.

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Johnston, 910 F.2d 652, 656 (9th Cir. 1990). In the instant case, the Court finds that the

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public’s interest in expeditiously resolving this litigation and the Court’s interest in managing

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the docket weigh in favor of dismissal. The third factor also favors dismissal. There is no

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risk of prejudice to Ryan to grant the motion.

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Public policy favors disposition of cases on their merits, so the fourth factor weighs
against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

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The final factor requires the Court to consider the availability of less drastic sanctions.

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Plaintiff was given ample time to respond to Ryan’s Motion to Dismiss. The Court explicitly

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warned Plaintiff that failure to respond could result in the granting of the motion (Doc. 19).

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Plaintiff nonetheless failed to respond or move for an extension. Thus, in weighing this last

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factor, the Court finds that dismissal of Count I is an available and less drastic sanction in

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this case.

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In sum, the five-factor analysis supports dismissal of Count I for failure to respond

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to the Motion to Dismiss. The Court’s decision to grant the motion in these circumstances

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is further supported by the fact that it is premised upon a local rule that expressly permits the

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Court to summarily grant unopposed motions. Ghazali, 46 F.3d at 53 (“Only in rare cases

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will we question the exercise of discretion in connection with the application of local rules”),

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quoting United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979).

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Ryan’s Motion to Dismiss Count I will therefore be granted based on Plaintiff’s
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failure to respond. See LRCiv 7.2(i).

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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
Dismiss (Doc. 18).

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(2) Defendant’s Motion to Dismiss (Doc. 18) is granted. Count I is dismissed without

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prejudice for failure to exhaust; in the alternative, it is dismissed without prejudice pursuant

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to Local Rule of Civil Procedure 7.2(i).

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(3) Count II against Pollard and Elliott remains.

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DATED this 28 day of August, 2012.

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