Gordon v. Ryan et al
Filing
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ORDER The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss (Doc. 18).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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