Kelley v. Gedney et al

Filing 44

REPORT AND RECOMMENDATION that the District Judge enter an order GRANTING Defendants' motion (ECF No. 23 ) and entering judgment in their favor. Objections to R&R due by 6/19/2017. Signed by Magistrate Judge William G. Cobb on 6/5/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES C. KELLEY,
Plaintiff,

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Case No. 3:16-cv-00041-MMD-WGC
REPORT & RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

v.
DR. KAREN GEDNEY, et. al.,
Defendants.

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This Report and Recommendation is made to the Honorable Miranda M. Du, United
States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
Before the court is the Motion to Dismiss/Motion for Summary Judgment filed by
Defendants Dr. Karen Gedney and Shannon Moyle. (ECF Nos. 23, 24; Exhibits at 23-1 to 2323-8, 24-1 to 24-8, and 25-1 to 25-5 (filed under seal).)1 Plaintiff filed a response (ECF No. 37),
and Defendants filed a reply (ECF No. 41).
After a thorough review, the court recommends that Defendants’ motion be granted on
the basis that Plaintiff failed to exhaust available administrative remedies.
I. BACKGROUND

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Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),
proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.’s Compl., ECF No. 4.) The
events giving rise to this action took place while Plaintiff was housed at Northern Nevada
Correctional Center (NNCC). (Id.) Defendants are Dr. Karen Gedney, Nursing Director Jonathan
Perry2, and NNCC Grievance Coordinator Shannon Moyle. (Id.)
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These documents are identical.
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The Screening Order identified the nursing director defendant as Perry, but the complaint listed the defendant

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On screening, Plaintiff was allowed to proceed with claims that Defendants were
deliberately indifferent to his serious medical needs in violation of the Eighth Amendment based
on allegations that Dr. Gedney failed to treat his hepatitis-C and refused to refer him for surgery
for his hernia, and that Perry and Moyle denied his grievances on these issues. (See Screening
Order, ECF No. 3.)
Defendants move for summary judgment arguing: (1) Plaintiff failed to properly exhaust
his administrative remedies; (2) Shannon Moyle did not personally participate in the alleged
Eighth Amendment violation; and (3) there is no evidence Dr. Gedney was deliberately
indifferent to Plaintiff’s hernia or hepatitis C.
II. LEGAL STANDARD
While Defendants’ titled their motion as one for dismissal or summary judgment, all of
their arguments rely on evidence outside of the complaint; therefore, the court will treat it as a
motion for summary judgment. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)
(per curiam) (the court will “consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to judicial notice”); Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
"The purpose of summary judgment is to avoid unnecessary trials when there is no
dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric.,
18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary
judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin,
525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). "The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.

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as Dir. of Nursing John Peery in the caption and list of defendants (see ECF No. 4 at 1, 2), and then as “Jonathan Perry”
and “Perry” in the body of the complaint (id. at 6, 13). When John B. Peery was eventually served, a motion for summary
judgment was filed on his behalf, arguing that he is not the correct defendant. The court has concurrently recommended
that summary judgment be granted in John B. Peery’s favor. The Attorney General’s Office has accepted service on
behalf of Jonathan Perry as of January 19, 2017, but he has not joined in this motion for summary judgment or otherwise
filed a responsive pleading. Default has not yet been entered against Perry. Given the court’s recommendation that
summary judgment be granted because of Plaintiff’s failure to exhaust, Defendant Perry should file a joinder in
Defendants’ motion or other responsive pleading forthwith.

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Civ. P. 56(a). On the other hand, where reasonable minds could differ on the material facts at
issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A), (B).

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If a party relies on an affidavit or declaration to support or oppose a motion, it "must be

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made on personal knowledge, set out facts that would be admissible in evidence, and show that

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the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

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In evaluating whether or not summary judgment is appropriate, three steps are

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necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine

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dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard

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of proof. See Anderson, 477 U.S. at 248-250. As to materiality, only disputes over facts that

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might affect the outcome of the suit under the governing law will properly preclude the entry of

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summary judgment; factual disputes which are irrelevant or unnecessary will not be considered.

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Id. at 248.

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In deciding a motion for summary judgment, the court applies a burden-shifting analysis.

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"When the party moving for summary judgment would bear the burden of proof at trial, 'it must

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come forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial.'...In such a case, the moving party has the initial burden of establishing

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the absence of a genuine [dispute] of fact on each issue material to its case." C.A.R. Transp.

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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). In contrast, when the nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate

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an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party
failed to make a showing sufficient to establish an element essential to that party's case on which
that party will bear the burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 32325 (1986).
If the moving party satisfies its initial burden, the burden shifts to the opposing party to
establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a genuine dispute of
material fact, the opposing party need not establish a genuine dispute of material fact
conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and
citation omitted). "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The nonmoving party
cannot avoid summary judgment by relying solely on conclusory allegations that are
unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and
allegations of the pleadings and set forth specific facts by producing competent evidence that
shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.
That being said,
[i]f a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact; (2) consider the
fact undisputed for purposes of the motion; (3) grant summary judgment if the
motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it; or (4) issue any other
appropriate order.
Fed. R. Civ. P. 56(e).
At summary judgment, the court's function is not to weigh the evidence and determine
the truth but to determine whether there is a genuine dispute of material fact for trial. See
Anderson, 477 U.S. at 249. While the evidence of the nonmovant is "to be believed, and all

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justifiable inferences are to be drawn in its favor," if the evidence of the nonmoving party is
merely colorable or is not significantly probative, summary judgment may be granted. Id. at 24950 (citations omitted).

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III. DISCUSSION
A. Exhaustion Standard

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The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). An inmate must exhaust his
administrative remedies irrespective of the forms of relief sought and offered through
administrative avenues. Booth v. Churner, 532 U.S. 731, 741 (2001).

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The failure to exhaust administrative remedies is “‘an affirmative defense the defendant
must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting
Jones v. Bock, 549 U.S. 199, 204, 216 (2007)), cert. denied., 135 S.Ct. 403 (Oct. 20, 2014).
Unless the failure to exhaust is clear from the face of the complaint, the defense must be raised
in a motion for summary judgment. See id. (overruling in part Wyatt v. Terhune, 315 F.3d 1108,
1119 (9th Cir. 2003)).

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As such: “If undisputed evidence viewed in the light most favorable to the prisoner
shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If
material facts are disputed, summary judgment should be denied, and the district judge rather
than a jury should determine the facts [in a preliminary proceeding].” Id., 1168, 1170-71
(citations omitted). “Exhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim. If discovery is appropriate, the district court may in its discretion limit
discovery to

evidence

concerning exhaustion,

leaving

until

later—if

it

becomes

necessary—discovery related to the merits of the suit.” Id. at 1170 (citation omitted). If there are
disputed factual questions, they “should be decided at the very beginning of the litigation.” Id. at
1171.

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Once a defendant shows that the plaintiff did not exhaust available administrative
remedies, the burden shifts to the plaintiff “to come forward with evidence showing that there is
something in this particular case that made the existing and generally available administrative
remedies effectively unavailable to him.” Id. at 1172 (citations omitted). The ultimate burden of
proof, however, remains with the defendant. Id.

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Exhaustion cannot be satisfied by filing an untimely or otherwise procedurally infirm
grievance; rather, the PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 89
(2006). “Proper exhaustion” refers to “using all steps the agency holds out, and doing so
properly (so that the agency addresses the issue on the merits).” Id. (citation omitted). Thus,
“[s]ection 1997e(a) requires an inmate not only to pursue every available step of the prison
grievance process but also to adhere to the ‘critical procedural rules’ of that process.
Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Woodford v. Ngo, 548 U.S. 81,
90 (2006)). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” Jones, 549 U.S. at 218. That being said, an inmate exhausts available
remedies “under the PLRA despite failing to comply with a procedural rule if prison officials
ignore the procedural problem and render a decision on the merits of the grievance at each
available step of the administrative process.” Reyes, 810 F.3d at 658.

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To reiterate, an inmate need only exhaust “available” administrative remedies. See
Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). “Accordingly, an inmate is required to exhaust
those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the
action complained of.’” Id. at 1859 (quoting Booth, 532 U.S. at 738).

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If the court concludes that administrative remedies have not been properly exhausted, the
unexhausted claim(s) should be dismissed without prejudice. Wyatt, 315 F.3d at 1120. If the
court finds that the prisoner has exhausted available administrative remedies or that the
administrative remedies were not available to him, the case may proceed on the merits. Albino,
747 F.3d at 1171.
///

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B. NDOC Grievance Process
NDOC’s Administrative Regulation (AR) 740 governs the inmate grievance process.
(ECF No. 23-8.)3 It requires an inmate try to resolve grievable issues through discussion with
their caseworker, and then if resolution is not possible, to complete three levels of review: the
informal, first and second levels. (ECF No. 23-8 at 6-10.) “In the event an inmate’s claim is
deemed inappropriate for review or not within the intended scope of this Regulation, the inmate
may appeal that decision only to the next procedural level of review.” (ECF No. 23-8 at 4,
AR 740.03.5.) “An inmate who is dissatisfied with the response to a grievance at any level may
appeal the grievance to the next level, within the substantive and procedural requirements
outlined [in AR 740].” (ECF No. 37 at 31, AR 740.03.6.)
An inmate has six months to file a grievance concerning medical or civil rights claims.
(ECF No. 23-8 at 6, AR 740.05.4.A.) If an inmate fails to submit an informal level grievance
within the designated time frame, it is considered abandoned at the informal and all subsequent
levels. (ECF No. 23-8 at 7. AR 740.05.8)
AR 740 also provides that a “First Level Grievance that does not comply with procedural
guidelines shall be returned to the inmate, unprocessed, with instructions using Form DOC-3098,
if applicable, for proper filing via the caseworker.” (ECF No. 23-8 at 9, AR 740.06.e.)
AR 740.09 addresses abuse of the inmate grievance procedure, and prohibits an inmate
from “abusing the system by knowingly, willfully or maliciously filing frivolous or vexatious
grievances[.]” (ECF No. 23-8 at 11, ECF No. 740.09.1.) Abuses of the inmate grievance
procedure include, but are not limited to, grievances that contain: threats of serious bodily injury
to a specific person; specific claims or incidents previously filed by the same inmate; more than
four unfounded, frivolous or vexatious grievances per month; filing two or more emergency
grievances per month that are not deemed to be emergencies; obscene, profane and derogatory
language, or contain two or more appropriate issues. (ECF No. 23-8 at 11, AR 740.09.2.A-F.)

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The parties have each provided a copy of the relevant version of AR 740. (Defs.’ at ECF Nos. 23-8 and 24-8,
and Pl.’s at ECF No. 37 at 29-42.) For brevity and ease of reading, all references to AR 740 in this Report and
Recommendation will be to ECF No. 23-8.)

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When an inmate files such a grievance, the assigned caseworker is instructed to return a
copy of the improper grievance to the inmate and Form DOC 3098, Improper Grievance
Memorandum, that notes the specific violation. (ECF No. 23-8 at 11, AR 740.09.3.A.) An
inmate is not to be given additional time to re-submit the grievance in the proper form, and the
failure to re-submit the grievance in proper form, within the prescribed time frame, constitutes
abandonment. (ECF No. 23-8 at 11, AR 740.09.4, A.) “If the timeframe has been exhausted prior
to the inmate receiving Form DOC-3098, the inmate has five (5) days from the date it was
received to re-submit.” (AR 740.09.4.B.)
C. Grievance Documentation
There is no dispute concerning the grievance documentation submitted by Plaintiff.
First, Plaintiff submitted his informal level grievance, identified as grievance number

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2006302478, on June 9, 2015. (ECF No. 23-1 at 24; ECF No. 37 at 44-45.) He stated:
Around the last week of May 2015 I was seen at NNCC’s RMF by RN Manalang
regarding my medical kite requesting surgical treatment for my hernia and the
new hepatitis C pill treatment available to inmates at NNCC. RN Manalang
ordered a blood test be done for my Hep C, and referred that I see Dr. King
(NDOC’s surgical contractor medical specialist) for surgical treatment for my
stomach hernia. Meanwhile, my blood test came back indicating that I have HepC. On June 4, 2015 I was seen by Dr. Gedney who said I was to die of cigarette
related symptoms before I would Hep-C, and basically refused to refer surgery to
NNCC’s Utilization Review Panel or provide the Hep-C treatment pill that would
not only prolong my life span but prevent any [ ] Hep-C transfer to other inmates.
On June 8, 2015, I was scheduled to see Dr. King and when I went to the RMF to
see him, I was stopped and informed by RN Mellissa-in front of Dr. King, Dr.
Gedney cancelled my appointment with Dr. King. I am being denied adequate
medical care for my serious medical need of hernia surgery and Hep-C treatment
that is available to inmates at NNCC, thus my Eighth Amendment right to
adequate medical care is being violated by Dr. Gedney.

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(ECF No. 37 at 44-45.)

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Defendants only provided the NOTIS grievance history report which summarizes inmate grievances and
responses instead of the actual grievance documentation. The court has previously instructed the Attorney General’s
Office that when it raises the affirmative defense of failure to exhaust administrative remedies it may submit the NOTIS
report, but should also submit the actual grievance documentation, as the summary frequently varies from or does not
contain all of the information from the actual grievance. Here, the problem is obviated in light of Plaintiff’s filing of the
actual grievance documentation with his complaint and response to Defendants’ motion. Defense counsel is reminded
that any future motion raising the failure to exhaust affirmative defense should be supported by the actual grievance
documentation.

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In response to the informal level grievance, Plaintiff was advised:
Mr. Kelley, per Medical Directive #219 you do not meet the criteria for Hepatitis
C treatment at this time. Per the physician[‘]s notes, your Hepatitis C should be
monitored every year, and that no treatment is needed at this time. Per
physician[‘]s notes, you have a small umbilical hernia, and surgery at this time
would be elective. Elective surgeries are not performed by the NDOC.
(ECF No. 23-1 at 2; ECF No. 37 at 47.)
Plaintiff filed a first level grievance dated June 30, 2015, disagreeing with the response to
the informal level grievance. (ECF No. 23-1 at 2; ECF No. 37 at 49-51.) It states:
I disagree with your response, as First, Medical Directive # 291 does not exist.
Second, how do you determine whether or not I meet the criteria for Hep-C
treatment (which 10 inmates are already receiving) without providing me with a
proper medical evaluation such as a liver biopsy in order to determine the
diagnosis or treatment options. A blood test only informs medical that a person
has hep-C. Third, NNCC does not have a medical protocol or directive on proper
“monitoring” of hep-C infected inmates for treatment-waiting a whole year before
monitoring a person[‘]s condition again puts that person at a greater risk of health
and safety. As so, I am requesting a liver biopsy in order to properly evaluate and
treat my hep-C condition. Lastly, I have informed both P.A. Manalang and
Dr. Gedney that my umbilical hernia is severely painful and hurts every time I
bend over. To deny me proper evaluation for treatment by cancelling my
appointment with Dr. King (on June 8, 2015) for hernia surgical treatment is
deliberate indifference to my serious medical needs. Once again I am requesting
to be seen by Dr. King so he can make a proper evaluation for surgical treatment.
(ECF No. 37 at 49-51.)
Perry sent Plaintiff an NDOC improper grievance memorandum dated July 7, 2015.

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(ECF No. 37 at 52.) Plaintiff was advised:
Per AR 740.09 2 F, ‘It is considered abuse of the inmate grievance procedure
when an inmate files a grievance that … contains two or more appropriate issues.’
Your grievance involves both Hep C treatment and hernia surgery. Please split
this into two separate grievances. You may resubmit your grievance after
correcting the above deficiencies. Failure to re-submit the grievance through the
prescribed timeframe shall constitute abandonment.

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(ECF No. 37 at 52.)

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Plaintiff did not file two separate grievances. Instead, Plaintiff filed a second level

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grievance disagreeing with the response to the first level grievance. (ECF No. 23-1 at 2;
ECF No. 37 at 54-62.) He took issue with Perry deeming his first level grievance an abuse of the
grievance procedure for containing multiple issues when he had received a response on the

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merits to the hepatitis-C and hernia repair issues at the informal level.

He repeated the

allegations of deliberate indifference asserted in his informal level grievance, and claimed that
they stemmed from a single occurrence—Dr. Gedney’s deliberate indifference to his serious
medical needs. He went on to assert that the response to the first level grievance was preventing
him from exhausting administrative remedies for various reasons.
The second level grievance was apparently received and forwarded to Keast, and was
ultimately rejected by Perry again as being an abuse of the inmate grievance procedure because
it contained two or more appropriate issues as it involved both hepatitis-C treatment and hernia
surgery. (ECF No. 23-1 at 3.) Plaintiff was told: “split this into two separate grievances.” (Id.)
D. Summary of Argument
Defendants argue that Plaintiff failed to properly exhaust his administrative remedies
because the prison rejected the grievance procedurally at the first and second levels on the basis
that Plaintiff was attempting to grieve multiple issues in one grievance. They contend that he did
not receive a ruling on the merits at each level of the grievance process, and he failed to resubmit
his grievances separately as directed.
Plaintiff argues: (1) once prison officials answered and addressed his complaints on the
merits at the informal level, he exhausted his administrative remedies for purposes of the
informal level, and needed to only proceed to the next levels; (2) his grievance was improperly
rejected as containing multiple issues; (3) the grievance process was unavailable to him as a
result of the finding that the grievance contained multiple issues because the regulation
precluded him from raising those issues again; and (4) the grievance process was unavailable to
him because AR 740 is ambiguous as to how to appeal or proceed on a grievance deemed
abusive for containing multiple issues.
E. Analysis
The court must now determine whether Plaintiff properly exhausted his administrative
remedies, and whether the administrative grievance process was available to him.
In Ross v. Blake, the Supreme Court rejected the Fourth Circuit’s adoption of a “special
circumstances” excuse for non-exhaustion that had been applied to a prisoner found to have
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made a reasonable mistake about the meaning of the prison’s grievance procedures. Ross, 136
S.Ct. at 1858. The Supreme Court nevertheless pointed to a non-exhaustive list of examples
where courts may conclude that administrative remedies are unavailable, and remanded for
consideration of whether the circumstances there presented a case where administrative remedies
were in fact available to the inmate. Id. at 1858-1862.
First, the Supreme Court stated that administrative remedies are unavailable “when
(despite what regulations or guidance materials may promise) [the grievance process] operates as
a simple dead end—with officers unable or consistently unwilling to provide any relief.” Id. at
1859. The Court gave the following example: “a prison handbook directs inmates to submit their
grievances to a particular administrative office—but in practice that office disclaims the capacity
to consider those petitions.” Id. “‘[W]here the relevant administrative procedure lacks authority
to provide any relief,’ the inmate has ‘nothing to exhaust.’” Id. (citing Booth, 532 U.S. at 736, n.
4.) The same is true where “administrative officials have apparent authority, but decline ever to
exercise it.” Id.
The second situation where the Supreme Court said administrative remedies are
unavailable is when “an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Id. “In this situation, some mechanism exists to provide relief, but
no ordinary prisoner can discern or navigate it.” Id. If the process is “susceptible of multiple
reasonable interpretations … the inmate should err on the side of exhaustion[,] [b]ut when a
remedy is … essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it
demands—then it is also unavailable.” Id. (citing Goebert v. Lee County, 510 F.3d 1312, 1323
(11th Cir. 2007); Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)).
The final instance discussed by the Supreme Court when administrative remedies are
unavailable is “when prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 1860. This occurs when
prison officials devise a procedural system to “trip[ ] up all but the most skillful prisoners” or by
misleading or threatening inmates “so as to prevent their use of otherwise proper procedures.”
Id. (citations and internal quotation marks omitted).
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The court will now turn to the parties’ arguments concerning whether Plaintiff exhausted
available administrative remedies.
1. Response on the Merits at the Informal Level
It is undisputed that Plaintiff received a response on the merits at the informal level, but
his grievance was then rejected on procedural grounds (for containing multiple issues) at the first
and second levels.
Defendants argue that he did not properly exhaust his administrative remedies because he
did not receive a response on the merits at the first and second levels, and he failed to file two
separate grievances on these issues as he was instructed. (ECF No. 41 at 4.)
Plaintiff contends that the response on the merits at the informal level served to exhaust
his administrative remedies there, and all he was required to do was then proceed to the first and
second levels. (ECF No. 37 at 13, 19.)
Plaintiff relies on Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) to support his
position. That case stands for the proposition that “[a]n inmate has no obligation to appeal from a
grant of relief, or a partial grant of relief that satisfies him, in order to exhaust his administrative
remedies.” Harvey, 605 F.3d at 685 (emphasis added). Here, Plaintiff was not granted any relief
at the informal level, let alone relief that satisfied him. Instead, he was advised he did not meet
the criteria for hepatitis-C treatment and would be monitored, and that hernia surgery was
elective and would not be performed by NDOC. Therefore, Harvey is inapposite.
Instead, Reyes v. Smith is controlling here. Reyes, 810 F.3d 654 (9th Cir. 2016). In Reyes
the inmate received a substantive response to his grievance at all available levels, and was told at
the final level: “This decision exhausts your available administrative remedies.” Reyes, 810 F.3d
at 656. The inmate eventually brought an action under section 1983, and the defendant moved to
dismiss the case, arguing the inmate failed to exhaust by not following the prison’s rule requiring
the inmate to list all staff members involved in the grievance and to describe their involvement.
Id. at 657-58. The Ninth Circuit reiterated that prisoners are required to adhere to procedural
rules of the grievance process, id. at 657, but held (in conformity with the other seven circuits to
address the issue): “a prisoner exhausts ‘such administrative remedies as are available,’…, under
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the PLRA despite failing to comply with a procedural rule if prison officials ignore the
procedural problem and render a decision on the merits of the grievance at each available step of
the administrative process.” Id. at 658 (internal citation omitted) (emphasis added).
Under Reyes, prison officials here could have waived the requirement that the grievance
address only a single issue by responding to both the hepatitis-C and hernia repair issues on the
merits at all levels of review. That did not occur. Plaintiff was given a response on the merits at
the informal level, but at the first and second levels he was advised that his grievance was
procedurally infirm because it contained two appropriate issues: hepatitis-C treatment and hernia
repair. While it may have been a better practice for the prison to reject the grievance on this basis
at the informal level, it remains that the Ninth Circuit requires a decision on the merits at all
available levels of review in order to consider the administrative remedies exhausted. The
undersigned came to a similar conclusion in another case where the inmate did not receive a
decision on the merits at all available levels of review. See, e.g., Shannon v. Harroun, 3:14-cv00505-RCJ-WGC, 2016 WL 4425096, at * 8 (D. Nev. June 27, 2016), adopted at 2016 WL
442953 (D. Nev. Aug. 17, 2016) (finding the prisoner did not exhaust available administrative
remedies where after the grievance was purportedly resolved on the merits at the informal level,
but the inmate did not proceed to the first and second level grievances as mandated by AR 740).
Therefore, the fact that Plaintiff’s grievance was addressed on the merits at the informal
level does not mean that he properly exhausted his administrative remedies.
2. “Two or More Appropriate Issues”
In essence, Plaintiff contends that prison officials improperly screened his grievance out
at the first and second levels for containing “two or more appropriate issues.” Plaintiff argues
that AR 740 is ambiguous as to the meaning of “two or more appropriate issues.” He claims that
he did properly exhaust his administrative remedies because it is his position that his grievances
did not refer to multiple issues, but one single issue—Dr. Gedney’s deliberate indifference to his
serious medical needs. Defendants, on the other hand, maintain that the grievance addressed two
issues—his hepatitis C treatment and hernia surgery—making the rejection at the first and
second levels proper.
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It is undisputed that AR 740 prohibits an inmate from abusing the grievance system, and
it is considered abuse of the inmate grievance procedure to file a grievance that “[c]ontains two
or more appropriate issues.” (ECF No. 23-8 at 11, AR 740.09.2.F.)
The Ninth Circuit has held that administrative remedies are not available when prison
officials improperly screen a prisoner’s grievance so that he cannot proceed to the next levels of
review. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). For the court to conclude that
administrative remedies are unavailable, the inmate is required to establish: “(1) that he actually
filed a grievance or grievances that, if pursued through all levels of administrative appeals,
would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that
prison officials screened his grievance or grievances for reasons inconsistent with or
unsupported by applicable regulations.” Id. at 823-24.
The Supreme Court has likewise recognized that administrative remedies might be
unavailable when the “administrative scheme [is] so opaque that it becomes, practically
speaking, incapable of use.” Ross, 136 S.Ct. at 1859. “In this situation, some mechanism exists
to provide relief, but no ordinary prisoner can discern or navigate it.” Id. The Court stated,
however, that “[w]hen an administrative process is susceptible of multiple reasonable
interpretations, Congress has determined that the inmate should err on the side of exhaustion.”
Id. This is in contrast to when a remedy is “essentially ‘unknowable’—so that no ordinary
prisoner can make sense of what it demands—[,]” in which case the process is unavailable. Id.
(citation omitted).
Plaintiff does not contend, and the court does not conclude, that no ordinary prisoner
could decipher the “two or more appropriate issues” language. Instead, as Plaintiff points out,
that phrase is subject to multiple reasonable interpretations insofar as Plaintiff’s grievance is
concerned: Plaintiff’s grievance could be construed as asserting a single issue (the denial of
health care by Dr. Gedney) or, two issues (hepatitis-C treatment and hernia surgery).
Under Sapp, the prison’s decision to construe the grievance which discussed both
hepatitis-C treatment and hernia surgery as containing multiple issues is not inconsistent with or
unsupported the regulation. Instead, construing a grievance that addressed two topics as an abuse
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of the prison grievance procedure is consistent with the regulation which precludes a grievance
from containing “two or more appropriate issues.”
Under Ross, if the phrase was subject to multiple reasonable interpretations, Plaintiff
should have erred on the side of exhaustion which according to defendants, required him to
timely re-submit separate grievances. This requirement will be discussed further below.
In sum, the court cannot conclude the grievance process was unavailable to Plaintiff
because his grievance was determined to contain “two or more appropriate issues.”
3. Did Instructing Plaintiff to File Two Separate Grievances Make the Grievance
Process Unavailable?
Plaintiff argues that had he proceeded with filing two separate grievances concerning his
hernia surgery and hepatitis-C treatment, he would not have been allowed to proceed because
AR 740.09 also precludes an inmate from filing more than one grievance at any one time about a
given incident or occurrence.
“[A]n administrative procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple dead end[.]” Ross, 136 S.Ct. at 1859
(citing Booth, 532 U.S. at 736, 738). “When the facts on the ground demonstration that no such
potential [to obtain relief] exists, the inmate has no obligation to exhaust the remedy.” Id.
Plaintiff points to another provision of the NDOC’s regulation, AR 740.09.2.B, which
says that it is an abuse of the inmate grievance procedure when an inmate files a grievance that
“contains specific claims or incidents previously filed by the same inmate.” (ECF No. 23-8 at
11.) As such, he claims that even if he had proceeded with filing the grievances separately, they
would have been rejected as an abuse of the prison grievance procedure too, leaving him at a
“dead end.”
In theory, if Plaintiff had re-filed his grievances separately, with one discussing his
hernia surgery and the other discussing his hepatitis-C treatment, the grievances could possibly
have been rejected as an abuse of the inmate grievance procedure under AR 740.09.2.B either
because both of the newly filed grievances discussed the same event (a single medical
appointment with Dr. Gedney) or because he had raised the claims/incidents in the previously
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rejected grievance. This did not occur here because Plaintiff never filed the grievances
separately. Nor does Plaintiff provide any evidence that this scenario had in fact occurred, either
to him or other inmates (i.e., another inmate(s) filed a grievance that was rejected because it
contained two or more appropriate issues and when the inmate followed the direction to re-file
the grievances separately, his grievance was rejected under AR 740.09.2.B). Therefore, it cannot
be said that the “facts on the ground” demonstrate Plaintiff had no potential for obtaining relief.
See Ross, 136 S.Ct. at 1860-61 (noting that the inmate’s filings included “many administrative
dispositions (gleaned from the records of other prisoner suits) indicating that Maryland wardens
routinely dismissed ARP grievances as procedurally improper when parallel [investigator
general] investigations were pending” and Attorney General briefs recognizing that practice.
There was also contrasting evidence where inmates were told they could not proceed with a
grievance while an investigation was pending, but did so anyway and received a ruling on the
merits.).
As a result, the court concludes that the evidence does not establish that the grievance
process was rendered unavailable to Plaintiff by virtue of the determination that his grievance
improperly contained multiple issues and the instruction to file separate grievances.
4. Ambiguity in AR 740 Concerning how to Proceed with a Grievance Deemed an
Abuse of the Prison Grievance Procedure
Finally, the court will address Plaintiff’s contention that his administrative remedies were
unavailable because AR 740 is ambiguous concerning how to appeal or otherwise proceed on a
grievance that has been deemed an abuse of the inmate grievance process. He argues that this
created a situation where this procedure would “trip[ ] up all but the most skillful prisoners.”
Ross recognizes that administrative remedies are unavailable when an “administrative
scheme [is] so opaque that it becomes, practically speaking, incapable of use” such as when the
“rules are ‘so confusing that … no reasonable prisoner can use them,’” or when prison officials
“devise procedural systems … in order to ‘trip[ ] up all but the most skillful prisoners.’” Ross,
136 S.Ct. at 1859-60 (quoting Woodford, 548 U.S. at 102).

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The parties do not dispute that AR 740.09 considers it an abuse of the grievance
procedure when an inmate submits a grievance that contains “two or more appropriate issues.”
(See ECF No. 23-8 at 11, AR 740.09.2.F.) The question is, how does an inmate proceed, so as to
exhaust administrative remedies for claims that were raised in such a grievance? AR 740.09
provides that when an inmate files such a grievance, the caseworker is to return a copy of the
improper grievance to the inmate along with Form DOC-3098 (the improper grievance
memorandum), noting the specific violation. (ECF No. 23-8 at 11, AR 740.09.3.A.) The
caseworker is also supposed to obtain the inmate’s signature and sign it as a witness, give the
original to the inmate, and return a copy to the grievance coordinator to include in the inmate’s

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grievance file. (ECF No. 23-8 at 11, AR 740.09.3.B-D.) AR 740.09 goes on to state:
4. The inmate shall not be given additional time to re-submit the grievance in the
proper form.
A. The inmate’s failure to re-submit the grievance in the proper form and within
the prescribed time frame shall constitute abandonment.
B. If the timeframe has been exhausted prior to the inmate receiving Form DOC3098, the inmate has five (5) days from the date it was received to re-submit.

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(ECF No. 24-8 at 11, AR 740.09.4.A-B.)

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While AR 740.09 does not directly state that an inmate who receives an improper

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grievance memorandum deeming a grievance an abuse of the prison procedure must timely re-

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submit the grievance in the proper form in order to proceed with exhausting administrative

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remedies, AR 740.09.4 implies as much by stating that an inmate who fails to timely re-submit

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the grievance in the proper form has abandoned it.

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Plaintiff points out that elsewhere in the regulation, under AR 740.03.6 (which comes

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under the heading “GRIEVANCE ISSUE”), inmates are advised that: “An inmate who is

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dissatisfied with the response to a grievance at any level may appeal the grievance to the next

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level, within the substantive and procedural requirements outlined herein.” (ECF No. 23-8 at 4,

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AR 740.03.6.) Plaintiff contends that he reasonably understood that to mean that he had to

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appeal a grievance rejected as abusive to the next levels of review, which he claims he did here.
(ECF No. 37 at 20.)

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Reading the document as a whole, there is some ambiguity in AR 740 concerning how an
inmate is to proceed to exhaust administrative remedies when he receives a response to a
grievance that deems the grievance an abuse of the grievance procedure and the inmate disagrees
with that determination: does the inmate re-submit the grievance in the proper form under AR
740.09 (here, by submitting two grievances), or does he appeal the improper grievance
memorandum to the next levels of review? The court must consider whether this ambiguity
rendered the grievance process unavailable to Plaintiff?
The court concludes that it did not. Ross reiterated that inmates are “required to exhaust
those, but only those, grievance procedures that are ‘capable of use’ to obtain some relief for the
action complained of.’” Ross, 136 S.Ct. at 1859 (quoting Booth, 532 U.S. at 738). While there is
certainly some ambiguity in AR 740 about how an inmate proceeds to exhaust his administrative
remedies when he receives an improper grievance memorandum finding that his grievance
constitutes an abuse of the prison grievance process, in this instance Plaintiff was advised in
response to the first and second level grievances of the way the prison interpreted the regulation
and how Plaintiff was to proceed: by filing two separate grievances on the issue. The prison’s
interpretation is consistent with the language in AR 740 dealing with grievances found to
constitute an abuse of the grievance process which seemingly requires timely re-submission of
the grievance in proper form to proceed. Therefore, the grievance process remained available to
Plaintiff. Plaintiff ignored this instruction, and instead of re-submitting the grievance as two
separate grievances, he filed first and second level grievances appealing the improper grievance
determination.
As a result, the court concludes that Plaintiff failed to exhaust available administrative
remedies, and Defendants’ motion for summary judgment should be granted.
When an inmate plaintiff fails to exhaust administrative remedies, the claims are usually
dismissed without prejudice; however, AR 740 allows an inmate six months to file an informal
level grievance on an issue involving medical or civil rights claims, and Plaintiff would be well
outside the regulations timeframe to grieve the claims asserted here. (ECF No. 34-8 at 6, AR
740.05.4.A.) Therefore, the dismissal should be with prejudice.
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The court acknowledges that this is a harsh result for Plaintiff, but it is dictated by the
PLRA’s mandatory language and case law interpreting what constitutes an “available”
administrative remedy. In light of this conclusion, the court need not reach Defendants’
arguments concerning the merits of Plaintiff’s claims.

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IV. RECOMMENDATION
IT IS HEREBY RECOMMENDED that the District Judge enter an order
GRANTING Defendants’ motion (ECF No. 23) and entering judgment in their favor.
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to
this Report and Recommendation within fourteen days of receipt. These objections should be
titled "Objections to Magistrate Judge's Report and Recommendation" and should be
accompanied by points and authorities for consideration by the district judge.
2. That this Report and Recommendation is not an appealable order and that any notice of
appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed
until entry of judgment by the district court.
DATED: June 5, 2017.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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