Whitmore v. Dante et al

Filing 40

ORDER Denying 38 Whitmore's motion to reconsider. Signed by Judge Jennifer A. Dorsey on 1/20/2017. (Copies have been distributed pursuant to the NEF - AF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Duane Whitmore,
2:14-cv-00877-JAD-VCF

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Plaintiff
Order Denying Motion to Reconsider

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v.

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M. Dante, et al.,

[ECF No. 38]
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Defendants

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Nevada state-prison inmate Duane Whitmore, who is represented by counsel, sues

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correctional officers (Cos) M. Dante and C. Newton and correctional-center caseworker Thomas,

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asserting two claims for retaliation in violation of the First Amendment under 42 U.S.C. § 1983.1

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On June 24, 2016, I granted defendants’ motion for summary judgment, finding that Whitmore failed

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to properly exhaust all available administrative remedies as required by the Prison Litigation Reform

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Act (PLRA).2 Whitmore now moves me to reconsider that ruling under FRCP 60(b). Because

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Whitmore has given me no valid reason to reconsider and I still find that defendants are entitled to

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summary judgment, I deny the motion.3

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Background

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Whitmore asserted two First Amendment retaliation claims under 42 U.S.C. § 1983 against

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three prison workers. In claim one, Whitmore alleges that COs Dante and Newton retaliated against

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him for filing a grievance by searching his cell and that CO Dante retaliated against him by charging

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him with possession of contraband.4 In claim two, Whitmore alleges that caseworker Thomas and

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CO Dante retaliated against him by threatening to move him to a more restrictive unit if Whitmore

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ECF No. 7.

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ECF No. 36.

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I find this motion suitable for disposition without oral argument. L.R. 78-1.

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ECF No. 7 at 10.

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continued to “giv[e] his officers a hard time. . . .”5

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Defendants moved for summary judgment on both of Whitmore’s claims, arguing that (1)

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Whitmore failed to allege or show a sufficiently adverse retaliatory action, (2) they enjoy qualified

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immunity from Whitmore’s claims, and (3) Whitmore failed to exhaust his administrative remedies

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as required by the PLRA. Because exhaustion is typically disposed of on summary judgment with

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the judge resolving factual disputes relevant to exhaustion and should, if feasible, be decided before

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reaching the merits of a prisoner’s claims,6 I first considered defendants’ exhaustion arguments. As

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summarized in my prior order, Whitmore filed three grievance actions relating to the allegations in

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this lawsuit: 2006-29-73003, 2006-29-73004, and 2006-29-73063.7 It is undisputed that Whitmore

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did not exhaust the first two grievance actions because he did not file a second-level grievance in

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either.8 The exhaustion issue thus turns on Whitmore’s third grievance action (2006-29-73003), in

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which he proceeded through all three levels.

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The parties do not dispute that the prison never addressed the merits of Whitmore’s claims in

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that action. The record reflects that the prison repeatedly rejected the grievances in that action on

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procedural grounds as duplicative of Whitmore’s first action, for which he filed only an informal

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grievance.9 In its responses to Whitmore’s grievances in the third action, the prison repeatedly

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instructed him to file these grievances under the first grievance-action number and proceed through

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the appeals process in that action rather than initiate a new action. He failed to do so.

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Whitmore argued on summary judgment that his third grievance action was “intended” to
replace his earlier grievance action “to avoid multiple grievances on a single related chain of events

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Id. at 7, 11.

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Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).

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ECF No. 24 at 13, ECF No. 32 at 10.

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ECF No. 24-6 (informal grievance only), 24-7 (informal and first-level grievance only).

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ECF No 24-6 at 2. Whitmore’s second grievance action was also rejected as duplicative of his first.
ECF No. 24-7.
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so as to avoid any confusion.”10 He also argued that he could not have put the original grievance-

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action number on the informal grievance that initiated the third grievance action because he had not

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yet received the response when he attempted to initiate and exhaust the third grievance action.11

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I rejected these arguments, finding that neither excused Whitmore from the PLRA’s

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mandatory exhaustion requirement. I reasoned that Whitmore had five days from receipt of the

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rejection of the informal grievance in the first grievance action (2006-29-73003) to appeal that

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decision through the appropriate channels and properly exhaust his prison remedies.12 In rejecting

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the grievances in his second and third actions, prison officials told him to do just that.13 But

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Whitmore never did so; instead, he proceeded through all three levels in the third action—none of

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which gave the prison an opportunity to address Whitmore’s retaliation claims on their merits as is

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required for proper exhaustion.

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Because defendants showed that there were available administrative remedies that Whitmore

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did not take advantage of, the burden shifted to Whitmore to come forth with evidence to show that

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there was something about his particular case that made these generally available remedies

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unavailable to him, thus excusing exhaustion.14 I found that Whitmore failed to carry that burden,

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noting that “there is no evidence to suggest that some external force prevented [him] from properly

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exhausting his first grievance action.”15 Accordingly, I granted summary judgment for defendants

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based on exhaustion, and I declined to address defendants’ remaining summary-judgment arguments.

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ECF No. 32 at 10.

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Id.

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ECF No. 36 (citing AR 740.05 § 12A).

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The rejection of Whitmore’s informal grievance in the third action states: “Grievance not accepted.
This is a duplicate of grievance #20062973003 submitted on 1/13/14. Please wait for a response.”
ECF No. 24-8 at 2.

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ECF No. 36 at 6.

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Id. at 7.

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Whitmore moves for relief from judgment, arguing that prison staff improperly rejected his

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third grievance action for “flip flop” reasons not explicitly provided for in the prison’s administrative

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regulations, thus rendering the prison’s three-level grievance process effectively unavailable to him.16

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At the very least, Whitmore contends, whether the grievances in his third grievance action were

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improperly rejected is genuinely disputed, precluding summary judgment based on exhaustion.

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Discussion
A.

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Motions for relief from judgment under FRCP 60(b)
Rule 60(b) “provides for reconsideration only upon a showing of (1) mistake, surprise, or

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excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or

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discharged judgment; or (6) ‘extraordinary circumstances’ which would justify relief.”17 “A motion

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for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the

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court has already ruled.”18

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B.

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Exhaustion under the PLRA
The PLRA requires inmates to exhaust all available administrative remedies before filing

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“any suit challenging prison conditions.”19 Failure to properly exhaust all available administrative

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remedies as required by the PLRA is “an affirmative defense the defendant must plead and prove.”20

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Once a defendant proves that there was an available administrative remedy that the inmate did not

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exhaust, “the burden shifts to the prisoner to come forward with evidence showing that there is

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something in his particular case that made the existing and generally available administrative

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remedies effectively unavailable to him.”21 Nonetheless, the ultimate burden of proof remains with

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ECF No. 38.

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Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991).

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Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005).

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42 U.S.C. § 1997e(a).

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Jones v. Bock, 549 U.S. 199, 204 (2007).

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Baca, 747 F.3d at 1172.

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the defendant.22 The question of exhaustion is typically disposed of on summary judgment, with the

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judge deciding disputed factual issues relevant to exhaustion.23 If feasible, exhaustion should be

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decided before reaching the merits of a prisoner’s claims.24

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In Woodford v. Ngo, the United States Supreme Court held that the PLRA’s exhaustion

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requirement requires proper exhaustion.25 Proper exhaustion means that the inmate must comply

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with the prison’s “deadlines and other critical procedural rules”26 and properly use “all steps that the

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[prison] holds out,” so that the prison is given an opportunity to address the issues on the merits.27

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The United States Supreme Court in Ross v. Blake recently reiterated that the PLRA’s proper

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exhaustion requirement is mandatory: exhaustion is only excused if administrative procedures are

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not available.28
The Nevada Department of Corrections has a three-level grievance process.29 An inmate

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begins this process by filing an informal grievance.30 An inmate can appeal the prison’s response to

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his informal grievance by filing a first-level grievance.31 To exhaust, the inmate must also appeal

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the prison’s first-level response by filing a second-level grievance.32

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Id.

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Id. at 1170–71.

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Id., 747 F.3d at 1170.

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

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Id. at 91.

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Id. at 90–91 (internal citation and quotation omitted).

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Ross v. Blake, 136 S. Ct. 1850 (2016) (holding that a court may not excuse an inmate’s failure to
exhaust administrative remedies before bringing suit under the PLRA, even to take “special”
circumstances into account).
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ECF No. 24-9 (AR 740).

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Id. at 5 (AR 740.05).

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Id. at 7 (AR 740.06).

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Id. at 8 (AR 740.07).

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C.

Whitmore has failed to carry his burden to show that the grievance process was
effectively unavailable to him.

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In Ross v. Blake, the United States Supreme Court identified three kinds of circumstances in

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which an administrative remedy, although officially on the books, is not “available” for exhaustion

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purposes. First, “an administrative procedure is unavailable when (despite what regulations or

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guidance materials may promise) it operates as a simple dead end—with officers unable or

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consistently unwilling to provide any relief to aggrieved inmates.”33 “Next, an administrative

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scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation,

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some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.”34

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Third, a grievance process is rendered unavailable “when prison administrators thwart inmates from

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taking advantage” of it “through machination, misrepresentation, or intimidation.”35
It is the third situation that Whitmore contends excuses his exhaustion here.36 He argues that

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the prison’s basis for procedurally rejecting the grievances in the third grievance action are

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illegitimate because they are not explicitly provided for in the prison’s administrative regulations and

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they are internally inconsistent. At the very least, Whitmore contends, he has challenged the

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rejections as illegitimate, creating a genuine dispute of material fact that precludes summary

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judgment.

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At the outset, I note that summary judgment is not inappropriate merely because Whitmore

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contests the legitimacy of the prison’s regulations. In this circuit, exhaustion under the PLRA is

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typically disposed of on summary judgment, with the judge resolving disputed factual issues.37 Even

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were I to deny defendants’ summary-judgment motion, I would still decide disputed factual issues

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Ross, 136 S. Ct. at 1859.

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Id.

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Id.

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ECF No. 38 at 7 n.8.

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Baca, 747 F.3d at 1170.

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relevant to exhaustion at trial.38 Defendants moved for summary judgment after discovery closed,

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and I have before me the relevant grievances, rejections, and administrative regulations. Though

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Whitmore contests the legitimacy of the prison’s rejections, I still find, based on the full record

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before me, that exhaustion in this case is properly disposed of on summary judgment and that

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Whitmore has failed to shift the proper-exhaustion burden back to the defendants.

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Whitmore has not shown that the prison’s generally available administrative remedies were

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unavailable due to “machination, misrepresentation, or intimidation” or any other circumstances. As

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I noted in my summary-judgment order, Whitmore was repeatedly instructed how to properly

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exhaust his retaliation claims. In its responses to Whitmore’s grievances in the second and third

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actions, prison officials repeatedly explained to Whitmore that he was attempting to file duplicate

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actions and that he needed to file his grievances under the first grievance-action number at the

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original level and proceed through the appeals process in that action rather than initiate a new action.

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Whitmore ignored these instructions, erroneously believing that he could properly exhaust his

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retaliation claims by abandoning the first and second actions and filing a third action in which he

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appealed all procedural rejections.

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The United States Supreme Court has explicitly rejected the argument that an inmate’s

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reasonable but mistaken belief that he has properly exhausted his administrative remedies can excuse

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exhaustion under the PLRA.39 There is nothing in the record to suggest that prison officials

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intentionally thwarted Whitmore’s ability to access the three-level grievance process, and I am

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unpersuaded by his arguments that exhaustion is excused because the prison’s proffered reasons for

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rejecting the grievances in the third action are not explicitly provided for in AR 740 and are

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internally inconsistent. I find that these rejections are consistent with each other, and that any relied-

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on procedural rules not explicitly stated in AR 740 are common-sense rules necessary to the orderly

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and efficient management of the prison’s administrative-grievance system that were clearly

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communicated to Whitmore, who chose to ignore them.

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Id. at 1170–71.

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Ross, 136 S. Ct. at 1856–57.
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The prison rejected Whitmore’s informal grievance in the third action because it was a

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duplicate of the informal grievance that he had filed in the first action. In rejecting the grievance, the

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prison explicitly instructed Whitmore to wait for a response in the first action (which he could then

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appeal) rather than instituting a new action.40 Whitmore claims that the third action was not in fact

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duplicative, and was therefore improperly rejected, because it included additional facts not contained

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in the informal grievance in the first action.41 That Whitmore included additional facts does not

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change the fact that the informal grievances in both actions are based on the alleged January 2014

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retaliation. To say that any time an inmate adds new facts to support his claims he can institute a

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new action would flood the prison administrative-grievance system and allow for multiple actions

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stemming from the same core of operative facts with potentially inconsistent outcomes—a result our

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own federal-court system forbids.

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The prison next rejected Whitmore’s first-level grievance, stating: “Grievance not accepted.

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Amended statements must be filed under the original grievance log number and the same level

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originally submitted.”42 This is entirely consistent with the prison’s first rejection of grievance 2006-

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29-73063 (and its rejections in the second grievance action) as duplicative of the first action. In

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short, Whitmore was repeatedly instructed not to submit multiple grievances stemming from the

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same factual incidents and to instead file any amended statements under the original grievance

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number. Even if this procedural bar is not explicitly stated in AR 740, Whitmore was repeatedly

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advised of its existence, so the process was not so “opaque” that it was “incapable of use,” nor does

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it appear that prison officials intentionally misled Whitmore about the grievance process.

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At best, Whitmore has shown that he made a good-faith effort to exhaust all available

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administrative remedies. He attempted to inform prison officials of his belief that the third action

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was not a duplicate because it contained additional facts not contained in the first action and he

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appealed the procedural denial of his third action through all three levels. But that is not enough. I

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ECF No. 24-8 at 2.

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ECF No. 38 at 4.

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ECF No. 24-8 at 9.
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simply do not find on the record before me that Whitmore has shown that the prison’s administrative

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grievance process was unavailable to him due to any of the circumstances the Supreme Court

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identified in Ross v. Blake or otherwise. So, I still find that the question of exhaustion was properly

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disposed of on summary judgment and that defendants were entitled to summary judgment based on

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exhaustion. I therefore deny Whitmore’s motion to reconsider.

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Conclusion
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Whitmore’s
motion to reconsider [ECF No. 38] is DENIED.
Dated this 20th day of January, 2017.

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_________________________________
_____________________
_ ___________ _
Jennifer A. Dorsey
nnifer A Dorsey
f
r
United States District Judge
nited States
d tate
ate
ct ud
ct Judge
ud

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