Bell v. Yavapai County Sheriff's Office et al

Filing 17

ORDER, the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss 15 ; Defendants' Motion to Dismiss 15 is granted; this action is dismissed without prejudice for failure to exhaust; in the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). Signed by Senior Judge James A Teilborg on 4/30/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Yavapai County Sheriff’s Office, et al., )
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Defendants.
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Michael Leon Bell,

No. CV 12-8121-PCT-JAT (SPL)
ORDER

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Plaintiff Michael Bell filed this civil rights action under 42 U.S.C. § 1983 against

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Yavapai County Sheriff’s Office Sergeant Proffer and Officers Isaacs and Hawkins (Doc. 8).

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Before the Court is Defendants’ Motion to Dismiss (Doc. 15). Plaintiff did not respond to

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the motion.
The Court will grant the Motion to Dismiss and terminate this action.

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I.

Background

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Plaintiff’s claims stem from his confinement at the Yavapai County Jail (Doc. 8).

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Plaintiff claimed that on January 12, 2012, Defendants failed to protect him from attacks

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from other inmates (id. at 3).
The Court found that Plaintiff’s allegations stated a claim and directed Defendants to

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respond to the First Amended Complaint.

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II.

Motion to Dismiss

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Defendants move for dismissal on the ground 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). In support of their motion, Defendants submit the Yavapai County Jail

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Handbook; the affidavit of Lieutenant Jason Miner, a Yavapai County Sheriff’s Office

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Grievance Hearing Officer; and two Inmate Handbook release forms reflecting Plaintiff’s

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receipt of the handbook (Doc. 15, Exs. 1-3).

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Miner attests that the Yavapai County Jail provides a four-step process to grieve an

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issue: (1) the inmate must first attempt to resolve an issue informally by completing an

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Inmate Request Form; (2) if unsuccessful, the inmate may file a formal grievance; (3) if not

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satisfied with the grievance response, the inmate may file a grievance appeal to the Grievance

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Hearing Officer, at which time the inmate will receive a hearing; and (4) if unsatisfied with

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the hearing results, the inmate may appeal to the Jail Commander (Doc. 15, Ex. 1, Handbook

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¶ 18). Miner states that he reviewed the jail’s grievance files and logs but Plaintiff failed to

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complete any of the steps of the grievance process regarding his failure-to-protect claim.
Defendants submit that based on this evidence, Plaintiff failed to exhaust his

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administrative remedies and his claim should therefore be dismissed (Doc. 15 at 4).

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

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Defendants’ motion (Doc. 16). This Order informed Plaintiff that if the motion is granted,

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his case could be dismissed (id. at 1). The Order also cited Local Rule of Civil Procedure

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

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

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until April 10, 2013 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.

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 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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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 First Amended Complaint, Plaintiff acknowledges that he did not file any

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grievances for his claim but alleges that he was not aware of the grievance procedure at the

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jail. It is true that if Plaintiff was unable to file grievance forms or if he was reliably

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informed that administrative remedies were not available, exhaustion is not required.

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Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009); Brown, 422 F.3d at 935. But in

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this case, Plaintiff has not shown that the jail’s grievance process was unavailable to him.

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Indeed, in failing to respond to the motion, Plaintiff offers no evidence to dispute that he

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twice received the jail’s handbook, which clearly outlined the grievance process (Doc. 15,

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Ex. 3). Thus, this case does not present a scenario where Plaintiff could not have availed

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himself of the grievance procedure. See Woodford, 548 U.S. at 90 (proper exhaustion

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

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the Court finds that Defendants have met their burden to demonstrate nonexhaustion, and the

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Motion to Dismiss 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 Defendants’ 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. 16). 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. 5, 7, 9).

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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 Defendants 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 the 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. 16).

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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 the First Amended Complaint without prejudice is an

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available and less drastic sanction in this case.

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In sum, the five-factor analysis supports dismissal of this case 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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Defendants’ Motion to Dismiss will therefore be granted based on Plaintiff’s failure

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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 Defendants’ Motion to
Dismiss (Doc. 15).

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(2) Defendants’ Motion to Dismiss (Doc. 15) is granted. This action is dismissed

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

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pursuant to Local Rule of Civil Procedure 7.2(i).
DATED this 30th day of April, 2013.

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