Aytch v. Baker et al

Filing 43

ORDER denying 32 Motion to Dismiss.; granting 36 Motion for Summary Judgment.; denying 30 Motion to extend prison copywork limit.; granting 31 Motion for Leave to File. Signed by Judge Jennifer A. Dorsey on 3/31/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Martinez Aytch,

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Plaintiff

2:15-cv-00958-JAD-PAL
Order Granting Motion for Summary
Judgment and Resolving All Other
Pending Motions

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v.

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Renee Baker, et al.,

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Defendants

[ECF Nos. 30, 31, 32, 36]
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Pro se Nevada state-prison inmate Martinez Aytch sues the Warden of Nevada’s Ely State

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Prison (ESP), two correctional officers, and a classification caseworker for civil-rights violations that

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allegedly occurred while he was incarcerated at ESP. Defendants move to dismiss or for summary

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judgment on Aytch’s claims, arguing that Aytch failed to properly exhaust all available prison

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remedies as the Prison Litigation Reform Act (PLRA) requires. Alternatively, they argue that

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Aytch’s claims either fail as a matter of law or are unsupported by the record evidence. I grant

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defendants’ motion for summary judgment, grant their motion for leave to file unredacted versions of

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Aytch’s medical records under seal,1 deny as moot defendants’ dismissal motion2 and Aytch’s

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motion to extend the prison copywork limit,3 and close this case.4

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Background

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Aytch sues four defendants for events that allegedly occurred while he was incarcerated at
ESP. He sues: Warden Renee Baker, Correctional Officers (COs) Debra Boone-Sharp and Edward

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ECF No. 31.

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ECF No. 32.

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ECF No. 30.

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

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Page 1 of 8

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Isenbergh, and caseworker Leslie Healer.5 He asserts four counts and seeks declaratory judgment,

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injunctive relief, and monetary damages.6

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Aytch alleges that on March 26, 2015, he was admitted to the ESP infirmary for high blood

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pressure.7 He claims that he asked CO Boone-Sharp to retrieve his Quaran and Kufi (prayer cap)

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from his personal property; she told Aytch that he would need to submit a request to the unit

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caseworker.8 Aytch submitted the request that evening, but caseworker Healer denied it.9

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The next day, Aytch asked C.O. Boone-Sharp for an informal grievance, and Boone-Sharp

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told him that there were none.10 Grievances are normally passed out at 8:00 p.m., and Aytch

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requested the grievance at 8:15.11 Aytch claims that he asked C.O. Isenbergh for an informal

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grievance on three separate, unspecified occasions but Isenbergh refused.12 This prevented him from

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filing grievances for the denial of his religious materials.13 Aytch submitted a second request for his

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religious items and legal materials on April 3, 2015, but that request, too, was denied.14 Aytch

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alleges that Christian and Jewish inmates housed in the infirmary were allowed to have their

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religious materials, but he was not.15

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ECF No. 18 at 2.

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Id. at 15.

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Id. at 8.

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Id.

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Id.

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Id. at 7.

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Id.

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Id.

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Id.

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Id. 8–9.

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Id. at 10.

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Page 2 of 8

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Aytch alleges that for the eleven days he was housed in the infirmary, he was locked in an

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isolation cell and not allowed indoor or outdoor exercise.16 The lack of exercise worsened Aytch’s

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chronic back and knee problems.17 Additionally, Aych alleges that he was denied a change of

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underclothes during this period despite making repeated requests to Caseworker Healer for a change

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of underclothes.18 Aytch claims that Warden Baker has implemented an unconstitutional policy of

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depriving inmates housed in the infirmary of indoor and outdoor exercise.19 Aytch asserts claims for

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denial of access to the courts, free-exercise violations, equal-protection violations, and a claim for

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unconstitutional conditions of confinement.

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Defendants move for summary judgment, arguing that Aytch failed to properly exhaust all

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prison administrative remedies as required by the PLRA and he has not shown that exhaustion is

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excused. Alternatively, defendants argue that Aytch lacks evidence of actual injury to support his

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denial-of-access claim, that his free-exercise and equal-protection claims—which are premised on

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the prison’s alleged loss or destruction of Aytch’s religious materials while he was housed in the

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infirmary—fail as a matter of law because Aytch had an adequate post-deprivation remedy under

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state law, and that the conditions Aytch was subjected to while in the infirmary—where he was in

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fact allowed outdoor yard time—were constitutional.

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Discussion
A.

Summary-judgment standards

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Summary judgment is appropriate when the pleadings and admissible evidence “show there

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is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

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law.”20 When considering summary judgment, the court views all facts and draws all inferences in

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Id. at 11.

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Id. at 18.

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Id.

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Id. at 12.

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See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing FED. R. CIV. P. 56(c)).

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the light most favorable to the nonmoving party.21 If reasonable minds could differ on the material

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facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the

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facts are undisputed and the case must proceed to the trier of fact.22

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If the moving party satisfies FRCP 56 by demonstrating the absence of any genuine issue of

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material fact, the burden shifts to the party resisting summary judgment to “set forth specific facts

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showing that there is a genuine issue as to the material facts”; it “must produce specific evidence,

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through affidavits or admissible discovery material, to show that” there is a sufficient evidentiary

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basis on which a reasonable fact finder could find in its favor.23 The court may only consider facts

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that could be presented in an admissible form at trial in deciding a motion for summary judgment.24

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Summary judgment may not be granted by default.25

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B.

Exhaustion under the PLRA

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1.

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

Prisoner plaintiffs must fully exhaust the grievance process before filing suit.

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“any suit challenging prison conditions.”26 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.”27

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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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Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); see also Nw. Motorcycle Ass’n v.
U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

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Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted); Bhan v. NME
Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 248–49.
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FED. R. CIV. P. 56(c).

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See Henry v. Gill Industries, Inc., 983 F.2d 943, 949–50 (9th Cir. 1993).

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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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remedies effectively unavailable to him.”28 Nonetheless, the ultimate burden of proof remains with

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the defendant.29 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.30 If feasible, exhaustion should be

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decided before reaching the merits of a prisoner’s claims.31

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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.32 Proper exhaustion means that the inmate must comply

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with the prison’s “deadlines and other critical procedural rules”33 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.34

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Recently, in Ross v. Blake, the United States Supreme Court 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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effectively unavailable to the inmate.35

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2.
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Defendants have shown that Aytch failed to exhaust all available administrative
remedies before filing suit, and Aytch fails to shift the burden back to defendants.

The NDOC has a three-level grievance process.36 An inmate begins this process by filing an

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informal grievance. An inmate can appeal the prison’s response to his informal grievance by filing a

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first-level grievance. To exhaust, the inmate must also appeal the prison’s first-level response by

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

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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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AR 740.
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filing a second-level grievance.37

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Defendants’ records show that Aytch submitted only one grievance action relating to the

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allegations in this case, grievance number 2006-29-9964.38 Aytch submitted the informal grievance

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on April 16, 2015. In the grievance, Aytch states that on Mach 26, 2015, he was admitted into the

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prison infirmary and ordered to change into a jumpsuit and out of the clothes that he was wearing,

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which included blue jean pants, a blue shirt, a jacket, a personal velcro belt, and his prayer cap.39

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When he was released from the infirmary and retrieved his personal property, his prayer cap and belt

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were missing.40 Aytch requested to be reimbursed for these lost items.41

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The prison rejected the grievance, indicating that when Aytch’s personal property was

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returned he “did not mention any lost items” and “signed the inventory sheet showing” that he had

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received everything.42 Aytch then filed a first-level grievance complaining that the grievance

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responder failed to properly investigate the grievance and that the infirmary and C.O. Boone-Sharp

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lost his belt and cap.43 The prison also rejected the first-level grievance, responding that the

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purportedly lost items “were signed for.”44

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First, Aytch did not exhaust this grievance because he did not file a second-level grievance.

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Even if Aytch had fully exhausted his lost-property claim, he never grieved the allegations in this

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case: that he was denied access to the courts, that his free-exercise and equal-protection rights were

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violated, and that he was subjected to unconstitutional conditions of confinement while in the

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AR 740.04, 740.05, 740.06, 740.07.

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ECF No. 38-10.

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Id. at 6–7.

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Id. at 7.

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Id.

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Id. at 5.

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Id. at 4.

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Id. at 3.

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infirmary because he was denied a clean change of underclothes and exercise. Because defendants

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have shown that there were available prison administrative remedies that Aytch did not take

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advantage of, the burden shifts to Aytch “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.”45

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Aytch responds that the allegations in his complaint that COs Boon-Sharp and Isenbergh

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denied his grievance requests establish that the prison’s administrative grievance process was

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effectively unavailable to him, excusing his failure to exhaust his claims.46 I find that Aytch’s

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conclusory statements—that C.O. Boon-Sharp denied his request for a grievance on March 27, 2015,

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and that Isenbergh denied three requests for grievances on three separate and unspecified

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occasions—are not sufficient to create a triable issue about exhaustion, particularly in light of

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Aytch’s ability to file a grievance complaining about the purported loss of his prayer cap just two-

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and-a-half weeks later. Aytch makes no effort to explain why he could not have simply included the

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rest of the allegations relating to his infirmary stay in that grievance. I thus find that defendants are

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entitled to summary judgment for lack of exhaustion, and I therefore decline to reach defendants’

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other arguments.

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Baca, 747 F.3d at 1172.

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ECF No. 40 at 2–3.
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Conclusion
Accordingly, IT IS HEREBY ORDERED that defendants’ motion for summary judgement
[ECF No. 36] is GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to dismiss [ECF No. 32] and Aytch’s
motion to extend prison copywork limit [ECF No. 31] are DENIED as moot.

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IT IS FURTHER ORDERED that defendants’ motion for leave to file unredacted versions of

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Aytch’s medical records under seal [ECF No. 31] is GRANTED. The exhibits at ECF No. 33 will

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remain under seal.

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IT IS FURTHER ORDERED that the Clerk is directed to ENTER JUDGMENT for
defendants and against Aytch and CLOSE THIS CASE.
Dated this 31st day of March, 2017.
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Jennifer A. Dorsey
nifer Dorsey
fe
e
United States District Judge
ited States
tate
t Judge
ud

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