Tierney v. Torikawa et al

Filing 88

ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST re 58 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 3/15/13. "1. Defendant's Motion to Dismiss the Complaint for Plaintiff's failure to exhaust pr ison administrative remedies is GRANTED. Plaintiff's Complaint and action are DISMISSED without prejudice. 2. The Clerk of Court SHALL enter judgment and close this case. 3. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Fede ral Rules of Appellate Procedure 24(a)(3)(A), that an appeal of this decision would not be taken in good faith." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney served by first class mail at the address of record on March 15, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,
#A1013142,
Plaintiff,
vs.
LOIS TORIKAWA, IRENE
REVILLA, SCOTT HARRINGTON,
MATT PATTIOAY,
Defendants.
____________________________

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Civil NO. 12-00056 LEK/RLP
ORDER GRANTING MOTION TO
DISMISS FOR FAILURE TO EXHAUST

ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST
Before the court is Defendants Lois Torikawa’s, Irene
Revilla’s, and Scott Harrington’s Motion to Dismiss Complaint for
Plaintiff Michael Tierney’s failure to exhaust administrative
remedies.
Motion.1

ECF No. 58.

Plaintiff has filed two Responses to the

See ECF No. 61; ECF No. 74.

Replies to each.

ECF No. 64, 77.

Defendants have filed

Because it is clear that

Plaintiff failed to exhaust his administrative remedies before
commencing this action, Defendants’ Motion is GRANTED pursuant to
42 U.S.C. § 1997e(a).

1

On November 13, 2012, after Defendants filed the Motion, the court
sent Plaintiff a second Notice to Pro Se Prisoner Litigants, explaining what
he must do to oppose a motion to dismiss for failure to exhaust. See Notice,
ECF No. 62; see also Woods v. Carey, 684 F.3d 934,936 (9th Cir. 2012).
Defendants also sent Plaintiff the Notice after the first hearing on this
matter, held on February 5, 2013. Plaintiff admitted at the March 5, 2013
hearing that he had received a copy of the Notice before submitting his second
Response.

I.

42 U.S.C § 1997(e)

“The Prison Litigation Reform Act [“PLRA”] requires
that a prisoner exhaust available administrative remedies before
bringing a federal action concerning prison conditions.”

Griffin

v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C.
§ 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005)
(quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)).
“‘[T]he PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong.’”

Bennett v. King, 293 F.3d 1096, 1098 (9th

Cir. 2002) (quoting Porter, 534 U.S. at 532).

Exhaustion is

mandatory, and “unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311
F.3d 1198, 1199 (9th Cir. 2002) (per curiam).

Even if the

prisoner seeks monetary or other relief that is unavailable
through the grievance system in question, the prisoner must still
exhaust all available administrative remedies.

See Booth v.

Churner, 532 U.S. 731, 741 (2001) (“[W]e think that Congress has
mandated exhaustion clearly enough, regardless of the relief
offered through administrative procedures.”).
Section 1997e(a) does not impose a pleading
requirement, but rather, provides an affirmative defense under
which defendants have the burden of raising and proving the
2

absence of exhaustion.

Jones, 549 U.S. at 216; Wyatt v. Terhune,

315 F.3d 1108, 1119 (9th Cir. 2003).

In deciding a motion to

dismiss for failure to exhaust administrative remedies, the court
may look beyond the pleadings and decide disputed issues of fact.
Wyatt, 315 F.3d at 1119-20.
II.

BACKGROUND

Plaintiff alleges that, on December 19, 2011, while he
was incarcerated at the Waiawa Correctional Facility (“WCF”),
Defendants ordered another inmate to assault him and then denied
him timely medical care.

Plaintiff commenced this action

approximately one month later, on January 25, 2012, while he was
still confined at WCF.2
Plaintiff was transferred to the Oahu Community
Correctional Center (“OCCC”) two days after the Complaint was
docketed, on January 27, 2012.

See Pl. Response, ECF No. 61

PageId #293 (stating Plaintiff was “fast-track transfer[r]ed from
W.C.F. on 1/27/2012 to O.C.C.C.”); see also, Pl. Feb. 1, 2012
Notice of Change of Address, ECF No. 9.

Plaintiff later notified

the court that he had been transferred to the Halawa Correctional
Facility (“HCF”).
ECF No. 25.

See May 25, 2012 Notice of Change of Address,

On June 27, 2012, Plaintiff was transferred to the

Saguaro Correctional Center (“SCC”), in Arizona.

2

ECF No. 36.

On

Plaintiff signed the Complaint on January 13, 2013. See Compl., ECF
No. 1 PageID #8. The Complaint was mailed from WCF on January 24, 2013. See
id., mailing documentation.

3

January 17, 2013, Plaintiff notified the court that he is again
confined at HCF.3

ECF No. 66.
III. EXHAUSTION PROCEDURES

The PLRA requires “proper” exhaustion of administrative
remedies.

Woodford v. Ngo, 548 U.S. 81, 93 (2006).

“Proper

exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules.”

Id. at 90.

This is “because

no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.”
90-91.

Id. at

Requiring prisoners to properly exhaust their claims

furthers Congress’s goal of “‘reduc[ing] the quantity and
improv[ing] the quality of prisoner suits.’”
Porter, 534 U.S. at 524).

Id. at 94 (quoting

Proper exhaustion advances this goal

by: (1) “giv[ing] prisoners an effective incentive to make full
use of the prison grievance process;” (2) reducing prisoner
suits, as some prisoners are “persuaded by the proceedings not to
file an action in federal court;” and (3) improving the quality
of any remaining prisoner suits “because proper exhaustion often
results in the creation of an administrative record that is
helpful to the court.”
A.

Ngo, 548 U.S. at 94-95.

Hawaii’s Administrative Exhaustion Procedure
The Hawaii Department of Public Safety’s (“DPS”)

3

Plaintiff states that he was granted parole on February 6, 2013, but
he remained incarcerated as of the date of the second hearing on the Motion.
See ECF No. 74, PageID #329.

4

grievance process is set forth in its Policy and Procedure Manual
(“PPM”) COR.12.03, which became effective on June 8, 2011.

See

http://dps.hawaii.gov/wp-content/uploads/2012/10/COR.12.03 (last
visited Feb. 28, 2013).

To initiate DPS’s grievance process, an

inmate must first attempt to informally resolve the grievance,
then follow a three-step process by submitting a grievance at
each step and waiting for a response, or for the time to receive
a response to expire, before moving to the next step.

See id.

To fully comply with PPM Cor.12.03, the inmate must also: (1)
submit a grievance within fourteen days of the date on which the
complained-of action occurred, subject to extensions of time due
to legitimate delays (for verified physical incapacity, transit
delays, unavailability of forms); (2) submit only one issue per
grievance; and (3) acknowledge receipt of a written response
before proceeding to the next step.

Failure to comply with these

rules terminates the grievance process for that particular issue.
See id.
If the inmate fails to follow proper procedures, the
prison’s grievance officer may reject and return the grievance or
appeal to the inmate without a response.

PPM COR.12.03 § 9.1.

If a grievance officer procedurally rejects a grievance, however,
the officer must provide the inmate with written notice of the
procedural rejection and an opportunity to correct and resubmit
the grievance or appeal.

Id.

If the officer fails to do so, the

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inmate may appeal that failure.

If, however, the grievance or

appeal is ultimately rejected for the inmate’s failure to comply
with PPM COR.12.03, after the opportunity to correct the issue
has been given, the inmate may not appeal that rejection.
IV. THE PARTIES’ ARGUMENTS
Defendants state that, although Plaintiff submitted
numerous grievances during his incarceration and since the
incident alleged here, these grievances do not relate to the
allegations in his Complaint.
2, 58-3.

See Liu Decl., Ex. A, ECF No. 58-

Defendants argue that Plaintiff therefore failed to

properly exhaust his prison administrative remedies in compliance
with the PPM, which governs Hawaii’s inmates’ grievances and
“define[s] the boundaries of proper exhaustion.”
U.S. at 218.

See Jones, 549

Defs.’ Mem. in Support, ECF No. 146-1.

Plaintiff initially conceded that his claims are
unexhausted, asserting he was not required to exhaust his claims
due to his transfer from WCF one month after the alleged assault.
See Pl. Response, ECF No. 61 PageID #292-93.

Plaintiff also

argued that a rational inmate would not use administrative
remedies that cannot provide the specific relief the inmate
seeks.

Id.
Four months after the initial hearing on this matter,

Plaintiff’s argument substantially evolved.
Response, ECF No. 77.

See Pl. Second

In his Second Response, Plaintiff
6

submitted a string of out-of-circuit cases supporting the
proposition that exhaustion may be excused in certain instances.
Plaintiff failed to compare these cases to the facts presented
here, however.

Plaintiff then broadly alleged for the first time

that he had, in fact, grieved his claims regarding the WCF
assault, but his grievances “were lost or destroyed and he was
prevented from filing any more grievances.”

Pl. Response, ECF

No. 74.

At the March 5, 2013 hearing, Plaintiff asserted again
that his grievances were lost, and also claimed that he was
unable to grieve his claims because he was hospitalized after the
alleged assault.
V.

ANALYSIS

The grievance procedures set forth in PPM COR12.03
apply and are available to all prisoners in correctional
facilities operated by the Hawaii Department of Public Safety.
See PPM COR.12.03.40.1.

Plaintiff filed fourteen grievances

since 2008, and seven grievances after the WCF incident and
before his transfer to Arizona, in May and June 2012.
No. 58-3 PageID #270-85.

See ECF

These grievances show that Plaintiff

was well-aware of DPS’s grievance process before and after the
incident at WCF on December 19, 2011.

The court has carefully

reviewed each grievance and is persuaded that none relate to the

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claims Plaintiff raises in this action.
A.

Plaintiff Was Not Prevented From Filing a Grievance
Plaintiff first argues that his transfer from WCF on

January 27, 2012, to OCCC, then to HCF, prevented him from filing
a grievance regarding the December 19, 2011, assault.

The DPS

PPM provides for delays in the grievance process when “the inmate
demonstrates a valid reason for delay in writing.”

PPM

COR.12.03.80.2.
Valid reasons for delay include . . . an extended
period in-transit during which the inmate was separated
from documents needed to prepare the grievance or
appeal; an extended period of time during which the
inmate was physically incapable of preparing a
grievance or appeal; an unusually long period taken for
informal resolution attempts; and unavailability of
grievance forms. The inmate is responsible for
submitting verification for any claimed reason for
delay.
Id.

Plaintiff provides nothing in support of this claim.

Moreover, his transfers had no apparent effect on his ability to
grieve these claims while he was still in Hawaii.

Plaintiff

filed seven grievances between May and June 2012, Nos. 172440,
172441, 172442, 172444, 172446, 172439, and 172439.

These

clearly show that Plaintiff was able to file grievances following
the WCF incident and prior to his transfer to Arizona.
No. 58-3 PageID #279-85.

See ECF

The grievance process was available to

Plaintiff regardless of where he was incarcerated in Hawaii and
he never sought an extension of time to file a grievance
regarding the WCF assault at any time.
8

Plaintiff directs the court to Boyd v. Driver, 579 F.3d
513, 514 n.2 (5th Cir. 2009), in support of his claim that his
transfer from WCF after the alleged assault excuses his failure
to exhaust.

Boyd does not hold that a transfer from one prison

to another negates § 1997e(a)’s exhaustion requirement, however.
Rather, Boyd notes that, although exhaustion applies to all suits
brought with respect to prison conditions, Boyd’s claims did not
qualify as a suit about “prison conditions.”

Id.

Plaintiff’s

claims, that WCF officials ordered another inmate to attack him
and then failed to provide him with medical care, clearly
constitute “conditions of confinement” claims.

See id.

Plaintiff also asserts that he was unable to grieve his
claims after the WCF assault because he was hospitalized.
Although this is a legitimate reason for delaying the grievance
process under PPM COR12.03.8.02, Plaintiff provided no evidence
to support this reason for his delay to DPS at the time, or now
to the court.

Even accepting that Plaintiff was in the hospital

until his transfer to OCCC, Plaintiff fails to explain why he did
not initiate a grievance upon his transfer to OCCC, or at any
time during the next six months before his transfer to Arizona,
or even after he was transferred to Arizona.

Had Plaintiff

submitted evidence of his hospitalization, and of Defendants’
refusal thereafter to allow him to grieve his claims despite his
physical incapacity, this argument might be credible.

9

Moreover, at the March 5, 2013 hearing, Plaintiff
asserted that he had contacted the State of Hawaii Ombudsman
after the alleged assault, as well as the Director of the Federal
Bureau of Investigation, Robert Mueller, regarding his claims.
Again, if Plaintiff was able to make these efforts to resolve his
claims, it is unclear why he was unable to proceed with the
grievance process.

Defendants did not prevent Plaintiff from

exhausting his claims.
B.

Exhaustion Is Not Excused Here
Plaintiff next argues that exhaustion is excused

because DPS’s grievance procedure cannot provide him the relief
he seeks.

Plaintiff is mistaken.

Exhaustion of administrative

remedies is mandatory regardless of the relief offered by the
process, Booth v. Churner, 532 U.S. 731, 741 (2001), and applies
to all prisoner suits relating to prison life.
at 532.

Porter, 534 U.S.

Plaintiff brought this suit seeking medical care,

damages, and the institution of criminal charges against the
inmate who allegedly attacked him.
#8.

See Compl., ECF No.1 PageID

Had Plaintiff grieved his claims when they occurred, prison

officials could have provided him with medical care, and, at a
minimum, brought disciplinary charges against the other inmate if
warranted.

Pl. Opp’n, ECF No. 60 PageID #293.

Prison officials

may also have taken steps to separate Plaintiff and the other
inmate during their transport to Arizona, about which Plaintiff
10

later complained.
No. 36.

See Mot. for Temporary Restraining Order, ECF

Relief was available to Plaintiff and exhaustion was not

excused.
C.

Plaintiff’s Statements Are Not Credible
Finally, Plaintiff claims that he actually filed a

grievance or grievances regarding the December 19, 2011,
incident, but Defendants lost or destroyed them.

Plaintiff

argues that this unsupported statement presents a disputed issue
of fact that may not be decided on a motion to dismiss for
failure to exhaust, relying on Walker v. Sheahan, 526 F.3d 973
(7th Cir. 2008).

In Walker, the Seventh Circuit reversed summary

judgment because the trial court failed to consider Walker’s
deposition testimony that a social worker lost Walker’s grievance
and mistakenly held that the Walker admitted that he did not
grieve the incident.

Id. at 979.

The Seventh Circuit held that

Walker’s earlier, unrebutted deposition testimony demonstrated
evidence of a genuine issue of material fact that the district
court failed to credit or consider.

Walker’s facts are

inapposite to those presented here.

There is no deposition

testimony supporting Plaintiff’s claims, or any other competent
evidence before the court that Plaintiff’s eleventh-hour
statements that Defendants lost or destroyed his grievances are
credible.

Moreover, the remaining out-of-circuit cases to which

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Plaintiff cites are also similarly unavailing here.4
This court may, “[i]n deciding a motion to dismiss for
a failure to exhaust nonjudicial remedies, . . . look beyond the
pleadings and decide disputed issues of fact.”

Wyatt, 315 F.3d

at 1120 (citation omitted); see also, Hubbard v. Houghland, 471
Fed. Appx. 625, 626 (9th Cir. Mar. 7, 2012) (holding that an
evidentiary hearing was required to determine the credibility of
the inmate’s written declaration that he had exhausted his
claims); c.f., Towns v. Holton, 346 Fed. Appx. 97, 100 (7th Cir.
2009) (acknowledging that “the district court was not compelled
to accept [the inmate’s] word that he submitted his grievances
and received no response,” but reversing for the district court’s
failure to make a credibility determination); Reneau v. Messerli,
2012 WL 6967256 (C.D. Cal. Dec. 21, 2012) (holding that the
inmate’s conclusory allegations that he exhausted, by themselves,
were insufficient to overcome the defendants’ detailed showing of
the inmate’s failure to exhaust); Bairfield v. Solano Cnty.
4
Plaintiff cites: Little v. Jones, 607 F.3d 1245, 1249-50 (10th Cir.
2010) (excusing failure to exhaust claims before bringing suit because an
administrative review board rejected inmate’s grievance on terms that were not
part of the prison’s grievance policy); Turner v. Burnside, 541 F.3d 1077,
1083-84 (11th Cir. 2008) (finding it was futile to require inmate to appeal
when the warden destroyed the first grievance); Kaemmerling v. Lappin, 553
F.3d 669, 675 (D.C. Cir. 2008) (holding that inmate’s claim seeking DNA
testing was non-grievable under BOP regulations); Gates v. Cook, 376, 376 F.3d
323, 332 (5th Cir. 2004) (holding grievances are exhausted when time for
response expires and when one inmate in the class exhausted the claims);
Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003) (declining to reverse
district court’s decision allowing suit to proceed, when prisoner failed to
exhaust before filing suit but did so before the motion to dismiss was
decided); Casanova v. Dubois, 309 F.3d 75, 77 (1st Cir. 2002) (excusing
exhaustion because the Massachusetts Department of Corrections had no
grievance process).

12

Sheriffs Dep’t, 2008 WL 564830, at *4 (E.D. Cal. 2008) (deciding
the disputed issue of whether inmate grieved his claims pursuant
Wyatt).
Plaintiff’s last minute claim that Defendants lost or
destroyed his grievance (or grievances) is not credible.
Plaintiff did not allege that he grieved this claim until after
the first hearing on Defendants’ Motion to Dismiss.

To the

contrary, Plaintiff vehemently argued that exhaustion was
unnecessary, impossible, and futile.

Although given notice of

the requirements of Rule 56 and the opportunity to rebut
Defendants’ Motion with admissible evidence, Plaintiff provided
nothing to support this self-serving claim either before or
during the March 5, 2013 hearing.

Rather, at different times

during this litigation Plaintiff has alleged that he was not
required to grieve his claims because he was transferred,
exhaustion was futile, he was unable to exhaust before filing
suit because he was hospitalized, and that Defendants lost or
destroyed his grievances concerning this incident.
Plaintiff’s demeanor at the hearing and throughout this
litigation convinces the court that his new allegations are not
credible.

Pursuant to Wyatt, this court resolves this disputed

issue of fact against Plaintiff.

Wyatt, 315 F.3d at 1120.

The

admissible evidence demonstrates that Plaintiff failed to grieve
these claims.

The record also shows that Plaintiff understood

13

the DPS grievance process, utilized it before and after the
incident at issue, and pursued extra-administrative avenues
without success.

Compliance with an agency’s deadlines and other

critical procedural rules is required.

Ngo, 548 U.S. at 90.

Accordingly, Plaintiff’s claims are DISMISSED without prejudice.
III.
1.

CONCLUSION

Defendant’s Motion to Dismiss the Complaint for

Plaintiff’s failure to exhaust prison administrative remedies is
GRANTED.

Plaintiff’s Complaint and action are DISMISSED without

prejudice.
2. The Clerk of Court SHALL enter judgment and close this
case.
3.

The court certifies, pursuant to 28 U.S.C. § 1915(a)(3)

and Federal Rules of Appellate Procedure 24(a)(3)(A), that an
appeal of this decision would not be taken in good faith.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 15, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Torikawa, 1:12-cv-00056 LEK/RLP, Order Granting Motion to Dismiss
for Failure to Exhaust; G:\docs\prose attys\Exh Ords\2013\Tierney 12-56 lek
(grt).wpd

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