Winkler v. Godecki et al

Filing 50

ORDER denying ECF No. 45 Motion to Extend Time; denying ECF No. 48 Motion to Reconsider. Signed by Judge Robert C. Jones on 6/14/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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GARY J. WINKLER,
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Plaintiff,
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vs.
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GODECKI et al.,
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Defendants.
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3:13-cv-00711-RCJ-VPC
ORDER

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This is a prisoner civil rights case under 42 U.S.C. § 1983. After screening and summary

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judgment, a single claim of excessive force remains for trial. The Court denied summary

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judgment on the affirmative defense of non-exhaustion as to that claim, and the remaining

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Defendant requested an evidentiary hearing on the issue. See Albino v. Baca, 747 F.3d 1162,

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1166 (9th Cir. 2014). The Court held the hearing on April 10, 2017 and ruled at the end of the

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hearing that Defendant had not proved the defense by a preponderance of the evidence.

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Defendant has asked the Court to reconsider. The motion is untimely, and the Court declines to

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enlarge time. The only basis given is the desire to review transcripts of the hearing before filing

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the motion. But counsel was of course present at the hearing, and a Rule 59 motion was not due

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until May 8, 2017, 11 days after the transcript was filed into the docket.

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Anyway, the Court finds no basis to reconsider. Morton v. Hall does not appear to

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institute any burden-shifting scheme for non-exhaustion of prisoner complaints. 599 F.3d 942

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(9th Cir. 2010). There, the Court of Appeals used no burden-shifting scheme but simply found

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that the district court had not abused its discretion in finding non-exhaustion where the

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defendants testified that there were no records of a grievance and the plaintiff “presented no

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evidence” of one. Id. at 945. Morton only testified as to having grieved other issues; he argued

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that for the purposes of exhaustion a grievance should inure to a plaintiff’s benefit as to all issues

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that “ar[i]se out of the same facts and circumstances.” Id. at 945–46. The Court of Appeals

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declined to adopt such a rule, noting that even absent grievance regulations requiring a particular

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degree of specificity, a grievance must “alert[] the prison to the nature of the wrong for which

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redress is sought.” Id. at 946 (quoting Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)).

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Here, by contrast, Plaintiff presented evidence that he exhausted the precise claim at issue. He

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testified that he submitted a modified informal grievance form (identified thereupon as a second-

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level grievance) relating to the informal and first-level grievances he had already submitted

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concerning the incident at issue in this lawsuit. Unlike Morton, Plaintiff provided evidence of

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exhaustion of the relevant claim sufficient to prevent Defendants from proving non-exhaustion,

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or even that the remedy was “available” to Plaintiff, by a preponderance of the evidence. See 28

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U.S.C. § 1997e(a).

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Even if Morton had instituted a burden-shifting scheme, Plaintiff here would prevail.

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Defendant would have satisfied his initial burden by showing a lack of any institutional record of

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a second-level grievance, but Plaintiff would have satisfied his shifted burden by testifying that

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he in fact put the second-level grievance in the drop-box designated for that purpose. Plaintiff’s

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testimony that he had submitted the second-level grievance on the modified informal grievance

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form (because the guards had no second-level grievance forms when he requested one) was

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corroborated by the fact that he had retained two copies of the completed, modified form. The

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grievance coordinator’s own testimony that the multiple-copy-and-receipt procedures were

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confusing and difficult makes even more plausible Plaintiff’s claim that he submitted the second-

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level grievance without receiving any signed or stamped receipt. The fact that no second-level

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grievance appeared in the prison’s records would be insufficient without more to rebut Plaintiff’s

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evidence as to his shifted burden. The lack of records would be a defendant’s initial burden to

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show. As a general matter of procedural logic, a defendant cannot rebut a plaintiff’s evidence of

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having satisfied a shifted burden by simply reiterating that the defendant has satisfied his initial

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burden, lest the putative burden-shifting scheme collapse into a conclusive presumption upon a

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defendant’s initial showing.
Ross v. Blake does not require a different result. 136 S. Ct. 1850 (2016). In that case, the

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Supreme Court ruled that the exhaustion requirement under § 1997e(a) contains a single

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exception for “[un]availabil[ity]” of the administrative remedy, not any “special circumstances”

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exception. Id. at 1856. Plaintiff needn’t invoke any “special circumstances.” Defendants have

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simply failed to prove non-exhaustion by a preponderance of the evidence. Only if they had

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done so and Plaintiff had then escaped dismissal by arguing some sort of exception to the statute

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apart from nonavailability would Ross matter.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Extend Time (ECF No. 45) and the

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Motion to Reconsider (ECF No. 48) are DENIED.
IT IS SO ORDERED.
June 14, 2017
Dated this 6th day of June, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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