Morgan v. City of Henderson Detention Center et al
Filing
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ORDER Granting 32 Defendants' Motion to Dismiss. Plaintiff's complaint is DISMISSED without prejudice. Clerk of Court is ordered to close this case. Signed by Judge Gloria M. Navarro on 7/13/12. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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INTRODUCTION
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TONY H. MORGAN
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Plaintiff,
vs.
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CITY OF HENDERSON DETENTION
CENTER, and
CAPTAIN R. AVRETT,
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Defendants.
Case No.: 2:09-cv-01392-GMN-PAL
ORDER
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This is a prisoner civil rights action filed by Plaintiff Tony H. Morgan against
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Defendants City of Henderson Detention Center and Captain R. Averett (improperly
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named as R. Avrett) (collectively, “Defendants”). Pending before the Court is
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Defendants’ Motion to Dismiss. (Mot. Dismiss, ECF No. 32.)
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PROCEDURAL HISTORY
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Plaintiff filed a Complaint and an Application for Leave to Proceed In Forma
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Pauperis in July 2009. (ECF No. 1.) The Court granted Plaintiff’s motion on August 18,
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2009, and Plaintiff’s Complaint against Defendants City of Henderson Detention Center
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and Captain R. Avrett was filed on August 20, 2010. (Pl.’s Compl., ECF No. 10.)
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Page 1 of 12
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Defendants filed separate motions to dismiss in October 2010. (Mot. Dismiss, ECF
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No. 14-15.) The Court denied Defendant R. Avrett’s Motion to Dismiss, but dismissed
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Defendant City of Henderson Detention Center from the lawsuit. (Order, ECF No. 23.)
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Thereafter, Plaintiff filed an Amended Complaint in June 2011 naming R. Avrett and
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City of Henderson as Defendants. (Am. Compl., ECF No. 26.) Defendants answered by
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filing the pending Motion to Dismiss on December 19, 2011. (Mot. Dismiss, ECF No.
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32.) Plaintiff filed a Response on December 29, 2011. (Resp., ECF No. 35.) Defendants
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then filed a Reply to the Response on January 9, 2012. (Reply, ECF No. 36.)
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SUMMARY OF THE FACTS
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Between February and August 2009, Plaintiff was a federal pre-trial detainee
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being held at the Henderson Detention Center (“HDC”), where he was allegedly held in
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isolation 22-23 hours each day. (Am. Compl. at 3-4.) Plaintiff filed a grievance on form
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HPD#4045 in June 2009, complaining of a lack of exercise time and requesting use of the
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enclosed recreational area. (Inmate Grievance Form Ex. A attached to Am. Compl. at 5.)
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Plaintiff received a written response on the same form, which had been reviewed and
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signed by the appropriate authority. (Id.) Plaintiff was told that it was not the policy of
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the HDC to allow inmates to use the outdoor recreational area and was advised to request
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a transfer. (Id. at 6.) Plaintiff acknowledged receipt of the response to his grievance by
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signing and dating the same on July 6, 2009. (Id.) Sometime thereafter, Plaintiff
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requested a transfer from the HDC. (Resp. at 4.)
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Plaintiff was transferred to the Federal Correctional Complex in Forrest City,
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Arkansas, in September 2009 to serve out his sentence. (Letter Req. Status, ECF No. 6.)
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Page 2 of 12
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LEGAL STANDARDS
A.
Rule 12(b)(6) Standard
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A court must dismiss a complaint that fails to state a claim upon which relief can
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be granted. Fed.R.Civ.P. 12(b)(6). A claim is sufficient if it puts the defendant on “fair
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notice of what the . . . claim is and the grounds on which it rests.” Conley v. Gibson, 355
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U.S. 41, 47, 78 S.Ct. 99 (1957). In addition, a complaint is valid only if it consists of
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more than “labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
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S. Ct. 1955, 1965 (2007). In deciding whether a claim is sufficient, a court must
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disregard allegations that are “merely conclusory, unwarranted deductions of fact, or
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unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
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2001). The remaining factual allegations are assumed true and construed in the light
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most favorable to plaintiffs. Id.
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A court must dismiss a complaint only if its factual allegations do not “state a
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claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. A claim is
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facially plausible when it contains allegations of material fact that would allow a court
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“to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). If it contains
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allegations that are “merely consistent with” a defendant’s liability, the complaint falls
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short of the plausibility standard. Id.
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“Generally, a district court may not consider any material beyond the pleadings in
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ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as
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part of the complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc.
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v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
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Similarly, “documents whose contents are alleged in a complaint and whose authenticity
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no party questions, but which are not physically attached to the pleading, may be
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considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion
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to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th
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Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of
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“matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.
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1986). Otherwise, if the district court considers materials outside of the pleadings, the
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motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa
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Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
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If a 12(b)(6) motion prevails, a district court should freely grant a plaintiff leave to
amend the complaint “when justice so requires.” Fed. R. Civ. P. 15(a). In general, leave
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to amend should be given with “extreme liberality.” Owens v. Kaiser Found. Health
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Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians
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v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). When granting a 12(b)(6) motion, “a
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district court should grant leave to amend even if no request to amend the pleading was
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made, unless it determines that the pleading could not possibly be cured by the allegation
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of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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B.
Pro Se Legal Standard
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Allegations contained in pro se complaints, such as that put forth by Plaintiff here,
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are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v.
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Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972). In civil rights cases where
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plaintiffs appear in pro se, courts must construe complaints liberally and give the
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plaintiffs the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dept., 839
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F.2d 621, 623-24 (9th Cir. 1988); Wiideman v. Wolf, 2:09-CV-00596-GMN-LRL, 2010
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WL 2764703 (D. Nev. July 13, 2010).
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Page 4 of 12
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ANALYSIS
A.
Prison Litigation Reform Act
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983. (Pl.’s Am. Compl. at 3.)
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Section 1983 holds a person liable who, acting under the color of law, deprives another of
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a right secured by the Constitution or federal law. 42 U.S.C. § 1983. A municipality or
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local government may also be liable under section 1983 for the acts of its employees or
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agents if the alleged violations of civil rights occur during execution of that government’s
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policy or custom. Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658,
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694, 98 S. Ct. 2018, 2037 (1978).
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Claims made pursuant to 42 U.S.C. § 1983 must comply with the provisions of the
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Prison Litigation Reform Act (“PLRA”), which states that “[n]o action shall be brought
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with respect to prison conditions under section 1983 of this title, or any other Federal
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law, by a prisoner confined in any jail, prison, or other correctional facility until such
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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
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Supreme Court has held that the requirement contained in section 1997e(a)—that all
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available administrative remedies be exhausted before a prisoner files a suit with respect
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to prison conditions—should be applied to any type of action in the prison setting without
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regard to the nature of the claim or the relief sought. Porter v. Nussle, 534 U.S. 516, 532,
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122 S. Ct. 983, 992 (2002); see Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (2001).
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In Booth, the Court held that a prisoner must exhaust all available grievance procedures,
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regardless of whether the remedial system is “plain, speedy, and effective.” Booth, 532
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U.S. at 740. The Court also made it clear that inmates must exhaust all available
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remedies even when the authoritative administration is incapable of granting the type of
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relief sought. Woodford v. Ngo, 548 U.S. 81, 85 (2006). In addition, the PLRA requires
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“proper exhaustion,” which refers to “using all steps the agency holds out, and doing so
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properly (so that the agency addresses the issues on the merits).” Id. at 89 (quoting Pozo
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v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).
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Courts in this district have consistently held that “proper exhaustion” is satisfied if
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an inmate passes either of two tests: (1) the “merits test,” which requires that a plaintiff’s
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grievance be decided on the merits and appealed through all possible levels; or (2) the
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“compliance test,” which requires a plaintiff to comply with the “critical rules” for filing
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grievances, including agency deadlines. Cinque v. Ward, 3:09-CV-00229-ECR, 2010 WL
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3312608, at *6 (D. Nev. July 28, 2010); Jones v. Stewart, 457 F.Supp.2d 1131 (D. Nev.
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2006). “Defendants must show that Plaintiff failed to meet both the merits and
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compliance tests to succeed in a motion to dismiss for failure to exhaust administrative
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remedies.” Jones, 457 F. Supp. 2d at 1134.
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The Supreme Court recently held that defendants have the burden of raising and
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proving failure to exhaust because it is an affirmative defense. Jones v. Bock, 549 U.S.
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199, 212, 127 S. Ct. 910, 919 (2007). The Ninth Circuit has instructed that failure to
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exhaust is a matter of abatement and is properly enumerated in a 12(b) motion instead of
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a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
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In deciding whether to grant a motion to dismiss for failure to exhaust, a court “may look
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beyond the pleadings and decide disputed issues of fact.” Id. at 1119-20 (citing Ritza v.
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Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir.1988) (per
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curiam)). If a court finds that an inmate did not properly exhaust the available
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administrative remedies, the inmate’s claim should be dismissed without prejudice. Id. at
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1120.
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For pre-trial inmates held in the HDC, there are systematic guidelines for filing
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grievances. (Aff. Ex. C attached to Mot. Dismiss 3:9-12, ECF No. 32.) The purpose of
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such guidelines is “to provide to inmates an internal request and grievance system for
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resolving requests, grievances, and appeals regarding confinement.” (HPD Policy and
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Procedure Ex. B attached to Mot. Dismiss at 11.) If inmates have complaints, they are
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instructed to file initial requests on an Inmate Request Form, which are reviewed in turn
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by an Officer, a Captain, and a Lieutenant. (Id. at 12.) If inmates are unsatisfied with the
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response to their requests, they are given 72 hours to file a grievance by filling out an
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Inmate Grievance Form, which is reviewed in a similar manner. (Id. at 12-13.) The
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administrators reviewing the inmates’ grievances should not be the same as those
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reviewing their requests. (Id. at 12.) If inmates are unsatisfied with the responses to their
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grievances, they may file an appeal and request a hearing within 72 hours of receiving
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their answers by filling out another form. (Id. at 13.)
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B.
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Motion to Dismiss for Failure to Exhaust
Plaintiff filed a request and grievance in accordance with HPD Policy and
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Procedure CM-4432.01, complaining that he was deprived of adequate exercise time
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while a pre-trial inmate in the HDC. (Ex. A attached to Am. Compl. at 6.) Defendants
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claim that Plaintiff did not exhaust the Henderson Police Department grievance process
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because he failed to appeal the answer he received on his grievance form. (Mot. Dismiss
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at 5:13-14.) Plaintiff alleges that the Lieutenant who signed his grievance form did not
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instruct him on the appeals process. (Resp. at 4.) The Court finds that Plaintiff did not
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file an appeal and request a hearing in accordance with HPD Policy and Procedure CM-
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4432.
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Because he failed to file an appeal at all, Plaintiff failed to satisfy the requirements
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of the merits test, which requires inmates to appeal their grievances to the highest level of
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the administrative review process before filing a civil suit. See Cinque, 2010 WL
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3312608, at *6. In addition, because his failure to appeal necessarily means he did not
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meet the Detention Center’s 72-hour timeframe for appeals, Plaintiff also failed to satisfy
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the requirements of the compliance test, which requires that inmates comply with all
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prison deadlines before filing suit. See id. Thus, Plaintiff did not properly exhaust the
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administrative remedies available in the HDC. However, Plaintiff appears to argue that
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(1) because the Lieutenant failed to inform Plaintiff of the appeals process, only the
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initial grievance form was “available” as that term is defined in the PLRA; and (2) in the
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alternative, the appeals process should be considered unavailable to him because he was
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unaware of its existence. (Resp. at 4.) Thus, he argues, Plaintiff complied with the
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PLRA, and his section 1983 civil action should not be dismissed. (Id.)
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1. Prison Official Misconduct
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Plaintiff alleges that the Lieutenant who reviewed his grievance form failed to
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inform him of the appeals process and that this act constituted misconduct that would
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excuse Plaintiff from the PLRA exhaustion requirement. (Resp. at 4.)
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The Ninth Circuit has held that inmates may be excepted from the exhaustion
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requirement if administrative remedies are “effectively unavailable.” Sapp v. Kimbrell,
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623 F.3d 813, 822 (2010). Administrative remedies are effectively unavailable to
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prisoners when those remedies are improperly screened by prison officials. Id. at 823.
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Prison officials improperly screen administrative remedies only if they purposefully or
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mistakenly intervene in a prisoner’s discovery of the appeals process. Id.; Nunez v.
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Duncan, 591 F.3d 1217, 1226 (2010). In Nunez, the court held that a prisoner who failed
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to file a timely appeal was excused from the exhaustion requirement even though “[t]here
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[was] nothing in the record to suggest bad faith or deliberate obstruction by the Warden
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or other prison officials.” 591 F.3d at 1226.
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Other circuits have likewise held that administrative remedies are unavailable to
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inmates if they cannot discover those remedies through reasonable effort. Brown v.
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Croak, 312 F.3d 109 (3d Cir. 2002) (excusing the exhaustion requirement when prison
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officials mistakenly told inmate he had to wait before filing a grievance); Dole v.
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Chandler, 438 F.3d 804 (7th Cir. 2006) (holding that an inmate is excused from the
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exhaustion requirement when prison officials mishandled his grievance); Miller v. Norris,
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247 F.3d 736 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a
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prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a)”); Goebert v.
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Lee County, 510 F.3d 1312 (11th Cir. 2007) (finding that an inmate exhausted her
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administrative remedies despite failing to appeal her grievance when the appeals process
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could not have been discovered through reasonable effort).
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Defendants allege that Plaintiff did not put forth reasonable effort in discovering
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whether there was an appeals process. (Reply 3:13-15, ECF No. 36.) Plaintiff does not
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allege any affirmative misconduct on the part of any prison official that would have
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disrupted his ability to learn of the appeals process. Although he claims that the
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Lieutenant who reviewed his grievance failed to inform him of the opportunity to appeal,
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Plaintiff does not allege that the Lieutenant or any other officer affirmatively lied about
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the process in response to an inquiry. Furthermore, Plaintiff does not allege any fact that
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would suggest he exerted reasonable effort in discovering whether he had exhausted the
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Detention Center’s administrative remedies.
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After he received the response to his grievance, Plaintiff signed the form to
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acknowledge he had received it. (Inmate Grievance Form Ex. A attached to Am. Compl.,
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ECF No. 26.) Immediately beneath Plaintiff’s signature is language suggesting the
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opportunity to appeal: “Any further requests need to be filed on an Inmate grievance form
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within 72 hrs[.] of receipt of this form.” Admittedly, it is somewhat ambiguous whether
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“further requests” refers to filing an appeal or to filing a different complaint through the
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request and grievance process; however, Plaintiff could have possibly resolved any
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confusion by glancing at the top of the form, which directs inmates in obvious language
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to “REFER TO HPD POLICY AND PROCEDURE 4432 FOR INFORMATION.”
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Plaintiff does not allege that the Corrections Manual containing HPD Policy and
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Procedure was deliberately kept from him or that he attempted to follow this piece of
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instruction. If he had, Plaintiff would have read: “When the grievance is answered, it is
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forwarded in the same manner as requests. Inmates not satisfied with the resolution may
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appeal and request a hearing on HPD#4039, Inmate Request Form.” In addition, there is
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an “APPEALS” section below this language in the Manual containing further information
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regarding the opportunity to appeal (including the 72-hour deadline). It is also worth
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noting that Plaintiff admits he filed “numerous Request (sic) and Grievances on this
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matter,” suggesting he was familiar with the administrative review process or at least
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capable of discovering the full process with reasonable effort. (Am. Compl. at 4.) For
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these reasons, the Court finds that Plaintiff could have discovered the opportunity to
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appeal and request a hearing if he had exerted reasonable effort.
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Because Plaintiff failed to demonstrate that any prison official did anything to
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make the administrative remedy system “effectively unavailable,” and because this Court
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finds that Plaintiff could have discovered the appeals process through reasonable effort,
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Plaintiff’s case does not fall within the exception allowed in the Ninth Circuit.
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Accordingly, his claim is dismissed for failure to exhaust.
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2. Mere Unawareness of Prison Grievance System
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Plaintiff appears to argue in the alternative that, even though no prison official
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engaged in misconduct that effectively barred his appeal, the appeals process was
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unavailable to him simply because he was unaware of its existence. (Resp. to Mot.
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Dismiss 3, ECF No. 35.) Defendants reject Plaintiff’s interpretation of the PLRA and
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argue that Plaintiff’s claim should be dismissed because he did not fully comply with the
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Henderson Police Department’s administrative remedies, regardless of whether he was
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aware of those remedies. (Mot. Dismiss at 5:16-17.)
The Ninth Circuit does not appear to have considered the issue of whether inmates
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are excused from the exhaustion requirement for mere unawareness. It appears that all
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courts considering this issue have held that inmates’ awareness of a prison’s grievance
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system is irrelevant when determining whether they satisfactorily exhausted the
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administrative remedies available to them. See Brock v. Kenton County, KY, 93
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Fed.Appx. 793 (6th Cir. Mar 23, 2004) (rejecting the plaintiff’s argument that the
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prison’s administrative remedies were not “available” to him because inmates were not
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aware of its existence); Twitty v. McCoskey, 226 Fed.Appx. 594 (7th Cir. 2007) (holding
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that “prisoner’s lack of awareness of a grievance procedure . . . does not excuse
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compliance”); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000) (rejecting an inmate’s
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argument that exhaustion should be excused because he allegedly relied on the warden’s
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representation that the problem would be remedied); Gonzales-Liranza v. Naranjo, 76
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Fed. Appx. 270 (10th Cir. 2003) (“even accepting plaintiff’s allegation that he was
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unaware of the grievance procedures, there is no authority for waiving or excusing
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compliance with PLRA’s exhaustion requirement”). These courts note that the
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exhaustion requirement of the PLRA is mandatory, and district courts may not find
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exceptions to it. Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). The Eighth Circuit
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explained: “Section 1997e(a) says nothing about a prisoner’s subjective beliefs, logical or
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otherwise, about the administrative remedies that might be available to him. The
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statute’s requirements are clear: If administrative remedies are available, the prisoner
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must exhaust them.” Chelette, 229 F.3d at 688.
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The Supreme Court has emphasized that district courts are not to read exceptions
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into the PLRA exhaustion requirement. See Woodford, 548 U.S. at 85 (2006)
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(“[e]xhaustion is no longer left to the discretion of the district court, but is mandatory”).
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While this Court agrees that it is reasonable to expect Defendant to use the word “appeal”
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on its Grievance Response / Answer form in reference to that procedure instead of other
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ambiguous terms, consistent with the guidance provided by the Supreme Court and with
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the precedent of other courts that have considered this matter, the Court finds that
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Plaintiff is not excused from the exhaustion requirement for merely being unaware of the
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opportunity to appeal his grievance. For these reasons, Plaintiff’s claim is dismissed
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without prejudice for failure to exhaust. Because Plaintiff’s claim cannot be cured
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through the allegation of additional facts, Plaintiff is denied leave to amend.
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CONCLUSION
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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (ECF No. 32) is
GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice.
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The Clerk of the Court is Ordered to close this case.
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July
DATED this _____ day of _________________, 2012.
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________________________________
Gloria M. Navarro
United States District Judge
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