Smith v. Nevens et al
Filing
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ORDER Granting 27 Defendants' Motion to Dismiss. IT IS FURTHER ORDERED that this case is dismissed without prejudice. Signed by Judge James C. Mahan on 5/25/11. (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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WILLIE T. SMITH,
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Plaintiff,
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vs.
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DWIGHT W. NEVENS, et al.,
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Defendants.
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2:10-cv-01415-JCM-RJJ
ORDER
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Presently before the court is defendants Jennifer Nash’s, Dwight W. Nevens’, Sergeant
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Provencal’s, and correctional officer Starling’s motion to dismiss. (Doc. #27). The plaintiff has
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responded (doc. #29), and the defendants have replied (doc. #32). Defendant correctional officer Avalos
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has also filed a joinder to the motion to dismiss. (Doc. #36).
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The defendant filed the instant prisoner civil rights action on December 16, 2010 (doc. #5).
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Thereafter, the court screened the complaint, finding that the plaintiff had stated a claim for retaliation
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in count one against defendants Nash, Starling, Avalos, and Provencal (doc. #8 at 5:10–11) and a due
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process claim in count three against defendant Nevens (id. at 6:12–13). Defendants now bring the instant
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motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust
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administrative remedies. (Doc. #27).
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Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust available
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administrative remedies before bringing a federal action. 42 U.S.C. § 1997e(a). Exhaustion is an
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affirmative defense, Jones v. Bock, 549 U.S. 199, 211–12 (2007), under which defendants have the
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burden of proving that further administrative remedies are available to the plaintiff, Brown v. Valoff, 422
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F.3d 926, 936 (9th Cir. 2005). In deciding a motion to dismiss for failure to exhaust administrative
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remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt v. Terhune,
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315 F.3d 1108, 1119–20 (9th Cir. 2003). The proper remedy where the defendant can show that a claim
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has not been exhausted is dismissal without prejudice. See Wyatt, 315 F.3d at 1119 (failure to exhaust
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administrative remedies is not decision on the merits).
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A prison inmate in Nevada satisfies the administrative exhaustion requirement by following the
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procedures of administrative regulation (“AR”) 740 (docs. #27-3, 27-4), which requires one informal
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and two formal levels of review (id. at 10, §1.1 “Levels of Review”). An inmate must first file and
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receive a response to an informal grievance before moving on to the second levels. Id. The plaintiff must
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have complied with all of the Nevada prison system’s procedural rules so that the agency addresses the
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issue on its merits before the plaintiff files a legal action. Woodford v. Ngo, 548 U.S. 81, 90 (2006).
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The court has reviewed plaintiff’s inmate issue history (docs. #27-1, 27-2) and finds that Smith
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has failed to exhaust the established grievance process. Specifically, plaintiff never filed any grievances
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regarding his claims that (1) defendant Nash threatened to lock him in the hole, and (2) on May 12, 2010,
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defendants Starling, Avalos, and Provencal searched his cell, both allegedly in retaliation for his having
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filed grievances. Additionally, plaintiff failed to file a first or second level formal grievance following
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his informal complaints that (1) on April 19, 2010, defendant Starling entered his cell and took his
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glasses and legal papers, and (2) defendant Neven never responded to plaintiff’s complaint that he could
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not obtain grievance forms.
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The court also finds plaintiff’s allegation that he was denied access to grievance forms
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insufficient to defeat defendants’ affirmative defense of administrative exhaustion. Although plaintiff
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has attached to the complaint (doc. #5) a document wherein he complained that neither his unit nor his
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caseworker had any available grievance forms, the “official response” in his record authorized plaintiff
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to “use plain or lined paper if kites are not available.” (Doc. #27-1 at 2). Thereafter, plaintiff nonetheless
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failed to file a first or second level formal grievance. Thus, the court finds no reason to excuse plaintiff
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from the administrative exhaustion requirements.
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to dismiss
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(doc. #27) is GRANTED;
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IT IS FURTHER ORDERED that the case is dismissed without prejudice.
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Dated this 25th day of May, 2011.
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UNITED STATES DISTRICT JUDGE
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