Vaster v. Hudgins et al

Filing 29

ORDER DENYING DEFENDANTS' MOTION TO DISMISS - denying 18 Motion to Dismiss. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Plaintiff,

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ORDER DENYING DEFENDANTS’ MOTION
TO DISMISS

v.

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CASE NO. CV-13-5031-EFS

MAURICE VASTER,

CHARLES HUDGINS, LAMAR NELSON,
CARLOS SABALA, and WAYNE RUSSELL,

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Defendants.
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Before the Court, without oral argument, is Defendants’ Motion

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to Dismiss.

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Carlos Sabala, and Wayne Russell ask the Court to dismiss Plaintiff

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Maurice Vaster’s pro se complaint because he failed to exhaust his

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administrative remedies.

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that his failure to exhaust was due to Defendants’ own conduct and

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therefore

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administrative remedies.

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denies Defendants’ motion.

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///

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///

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///

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//

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/

ECF No. 18.

the

Court

Defendants Charles Hudgins, Lamar Nelson,

Mr. Vaster opposes the motion, contending

should

deem

him

to

have

exhausted

his

For the reasons set forth below, the Court

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 1

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Background1

A.

Mr.

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Vaster

is

an

inmate

at

Coyote

Ridge

Corrections

Center

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(“Coyote Ridge”), who was permitted to work at Coyote Ridge’s laundry

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room, which is managed by Correctional Industries (CI).

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¶ 4.1.

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nine months when on May 31, 2011, Defendants Sergeant Russell and

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Correctional Officers (C/Os) Sabala and Nelson accused Mr. Vaster of

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stealing a pair of thermal underclothing.

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19-3 at 57.

ECF No. 6 at

Mr. Vaster had worked in the laundry room for approximately

Id. ¶¶ 4.1 – 4.4; ECF No.

They escorted Mr. Vaster to the CI office for questioning

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regarding his thermals.

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Vaster advised that the thermals were his, and C/O Ceballous confirmed

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that the thermals were listed on Mr. Vaster’s property matrix.

Id.

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Nevertheless,

Mr.

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Vaster to his cell and search for thermals that were not issued to Mr.

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Vaster.

Sergeant

Id. ¶ 4.6.

ECF No. 6 ¶ 4.5; ECF No. 19-3 at 57.

Russell

directed

C/O

Sabala

No extra thermals were found.

to

escort

Mr.

Id.

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Mr. Vaster advised C/O Sabala that he believed he was being

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harassed and that he would file a staff misconduct grievance against

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him,

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responded that Mr. Vaster would receive a disciplinary infraction.

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Id. ¶ 4.8.

Sergeant

Russell,

and

C/O

Nelson.

Id.

¶

4.7.

C/O

Sabala

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1

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The "background" section is based on the Complaint's, ECF No. 6, factual
allegations, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), as

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well as the administrative documents provided by the parties and the
filings

in

Mr.

Vaster’s

prior

lawsuit,

E.D.

Wash.

CV-11-5164-CI.

Neither party disputed the authenticity of the provided documents.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 2

C/Os Sabala and Nelson filed a disciplinary infraction against

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Mr. Vaster on June 3, 2011, alleging that he committed theft

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violation of WAC-555.2

Id. at 4.9; see ECF No. 19-3 at 57.

A disciplinary hearing was held on June 9, 2011.

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in

Id. ¶ 4.11;

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ECF No. 19-3 at 50 & 57.

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the theft charge was dismissed in his favor as there was no evidence

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he stole thermals.

ECF No. 6 ¶ 4.12; ECF No. 19-3 at 50 & 57.

After the infraction was dismissed in his favor, Mr. Vaster

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9

Mr. Vaster participated in the hearing, and

resumed work at the CI laundry.

ECF No. 6 ¶ 4.13.

Concerned with Mr.

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Vaster’s return to the laundry room, Sergeant Russell and C/Os Sabala

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and Nelson contacted CI General Manager Hudgins and advised that Mr.

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Vaster should be terminated from CI.

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terminated Mr. Vaster’s employment on the grounds that Mr. Vaster was

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suspected of forcing other inmates to steal laundry from the clothing

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room.

Id.

Mr. Hudgins thereafter

Id. ¶¶ 4.14 & 4.15.
On June 9, 2011, the date of the favorable disciplinary hearing

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decision,

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1111602,

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Mr.

Vaster

alleging:

against

filed

Sergeant

an

Offender

Russell

and

Complaint,
C/Os

Nelson

Log
and

I.D.

No.

Sabala,

C/Os Sabala, L. Nelson & Sgt. Russell . . . maliciously
conspire[ed] to falsely accus[e] me of “stealing,” on 5-3111, at approximately 7:40 a.m. I passed thru the clean room

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2

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Defendants provided an “Infraction Review Checklist” dated May 31, 2011.
ECF No. 19-3 at 49.

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The Court is unsure how this document relates to

this lawsuit as the individual who signed the document, Mauro Grotiz,
does not appear to have been involved in the infraction relating to this
lawsuit.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 3

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area wearing a set of thermals on my way to work.
At
approx. 8:30 a.m. while performing my work details I was
escorted into the laundry staff restroom and confiscated
the set of thermals I was wearing.
I was then informed
that I would be wrote up for stealing and was escorted from
my work and haven’t been able to return.
Additionally,
Sgt. Russell asked me if I had two pair of thermals on my
clothing matrix? My reply was “yes, and I arrived from
another facility with them.” Upon review of my clothing
matrix it clearly states or shows that I did arrive here
with two sets of thermals.
Because of their actions they
deliberately place my job in jeopardy with malice and
unprofessionalism.

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ECF No. 19-3 at 48.

On June 16, 2011, the grievance coordinator

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returned

Complaint

the

Offender

because

“[i]t

is

not

a

grievable

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issue” since “working assignments – hiring/firing are classification

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issues and the complaint must go through the CPM’s office.

See #9 on

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backside

grievance

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coordinator’s

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Complaint, which was given the same Log I.D. No. 1111602:

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of

this

form.”

response,

Id.
Mr.

After

Vaster

receiving

submitted

the

another

Offender

I WANT TO GRIEVE: Sgt. Russell, C/O Sabala & C/O L. Nelson
for staff misconduct and maliciously conspiring in abusing
governing WAC # 137-28-270/DOC # 460.000 Policies.
On 531-2011 at approx. 7:45 a.m. I passed thru the clean room
wearing a set of thermals on my way to work. While at work
at approx. 8:30 a.m. I was ordered and escorted by Sgt.
Russell & C/O Sabala to the laundry staff restroom an [sic]
instructed to give C/O Sabala the set of thermals I was
wearing.
I informed them that my “clothing matrix” would
verify authorization which was later confirmed: the set of
thermals I was wearing was also not new.
ECF No. 19-3 at 53 (emphasis in original).
On

June

20,

2011,

Mr.

Vaster

contacted

his

Id. ¶ 4.16.

counselor

for

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assistance with returning to work.

Although Coyote

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Ridge’s procedures specify that an inmate’s counselor is to receive

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work termination paperwork, Mr. Vaster’s counselor had not received

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Mr. Vaster’s work termination paperwork.

Id. ¶ 4.17; ECF No. 19-3 at

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 4

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59.

That same day the grievance coordinator responded to Mr. Vaster’s

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June

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grievance/appeal paperwork is being prepared,” and 2) “[s]ee pp. #13

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of the offender grievance manual disciplinary action - work related

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vs. classification matters.”

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coordinator also contacted CI General Manager Hudgins.

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at 61.

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in the laundry room because he was suspected of encouraging laundry

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porters to sell laundry.

16,

2011

Offender

Complaint

as

follows:

1)

ECF No. 19-3 at 53.

“[t]he

formal

The grievance
ECF No. 19-3

Mr. Hudgins advised that Mr. Vaster was not permitted to work

Id.

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Mr. Vaster met with the grievance coordinator again on July 21,

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2011, and asked the grievance coordinator to re-submit the initial

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grievance that he had filed on July 16, 2011.

ECF No. 19-3 at 52.

On August 1, 2011, Mr. Vaster filed a Level I-Initial Grievance:

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again given Log I.D. No. 1111602.

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as

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grievance coordinator responded,

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listed

on

his

prior

Offender

Mr. Vaster’s grievance was the same
Complaint.

That

same

day,

the

Staff members, like all people are human and at times will
make wrong decisions or errors in judgment. The fact that
you were exonerated from the infractions is proof that the
system has the proper checks and balances installed to
correct such errors.
The grievance office would like to
extend an apology for troubles and time lost that this
incident has caused.
The fact that you have been cleared of the infraction
charges allows you the right to contact job assignments to
begin the process to regain your employment status that you
had before the infraction was levied.

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ECF No. 19-3 at 51.
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The next day, Mr. Vaster filed another Offender Complaint, again
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given Log I.D. No. 1111602, which stated:
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 5

I WANT TO GRIEVE: Im [sic] appealing the decision from the
initial grievance (I.D. #1111602) to the next level.
The
falsification and defamation of my character was never
addressed as a part of the suggested remedy.

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ECF No. 19-3 at 69 (emphasis in original).

The grievance coordinator

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responded that formal grievance paperwork would be prepared for a
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Level II appeal.

Id.

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Beginning August 10, 2011, an investigation was performed by
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Richard Robideau regarding Mr. Vaster’s Log I.D. No. 1111602.

ECF No.

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19-3

at

59-60.

After

conducting

the

investigation,

Mr.

Robideau

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concluded there was bias against Mr. Vaster by the Coyote Ridge staff.
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Id.

Mr. Robideau recommended that Mr. Vaster be given his laundry job

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back and receive incentive pay.

Id.

The record does not identify who

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was given this investigative report or what action, if any, was taken
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by Coyote Ridge in response.

Based on the current record, it appears

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however that no action was taken in Mr. Vaster’s favor, and it appears
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that the report was not given to Superintendent Uttecht given his
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statement on October 30, 2011, as set forth below.
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On September 27, 2011, Mr. Vaster filed an Appeal to Level II,
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also Log I.D. No. 1111602, which stated: “I am appealing the decision
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from the initial greivance [sic] ID #1111602 to the next level. The
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falsifiction [sic] and defamation of my character was never addressed
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as part of the suggested remedy.”

ECF No. 19-3 at 54.

On September

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30, 2011, Superintendent Uttecht responded:
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Your level II grievance was investigated by CUS R.
Robideau. In conclusion of the investigation, there is no
documentation to support the allegation of biased behavior
from staff towards you. The proper procedures were followed
by staff. You have the choice to reapply for a CI job.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 6

Contact your counselor
refferal [sic] process.

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for

the

CI

application

and

the

2
Id.

On October 4, 2011, Mr. Vaster sought a Level III appeal of the

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Level II denial of his grievance.

ECF No. 19-3 at 70-71.

His Level

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III appeal was denied.

Id.

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On December 29, 2011, Mr. Vaster filed a lawsuit against C/Os
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Sabala and Nelson, Sergeant Russell, CI General Manager Hudgins, and
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Superintendent Uttecht.

CV-11-5164-CI, ECF No. 1.

In part, Mr.

8
Vaster

alleged

that

Defendants

conspired

to

subject

him

to

false

9
disciplinary charges and retaliated against him.

Id.

Defendants

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filed a motion to dismiss submitting, in part, that Mr. Vaster failed
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to exhaust available administrative remedies as to the claim that
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Defendants retaliated against him for filing grievances.

CV-11-5164-

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CI, ECF No. 21 at 11-12.

In response, Mr. Vaster agreed that he

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failed to file a grievance pertaining to his claim of retaliation,
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thereby conceding that he failed to exhaust his retaliation claim.
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CV-11-5164-CI, ECF No. 27.

Mr. Vaster asked the court to dismiss the

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lawsuit without prejudice as he sought “to revisit the issues upon
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properly exhausting administrative remedies.”

Id. at 2.

On September

19
19, 2012, the court dismissed his lawsuit without prejudice and cited
20
to Booth v. Churner, 532 U.S. 731, 741 (2001), for the proposition
21
that

a

“complaint

is

dismissed

without

prejudice

for

failure

to

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exhaust administrative remedies.”

CV-11-5164-CI, ECF No. 30 at 2.

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In

September

2012,

Mr.

Vaster

sent

a

letter

to

Mr.

Uttecht

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regarding Defendants’ ongoing retaliation against him.
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4.22.

Mr. Uttecht did not respond.

Id.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 7

ECF No. 6 ¶

1

On October 8, 2012, Mr. Vaster filed an Offender Complaint,

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alleging that his continued request to be returned to his laundry job

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was being arbitrarily denied, and he requested that he be returned to

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CI employment with back pay.

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combined with the prior grievances and issued the same Log I.D. No.

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1111602.

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grieved this issue to a Level III conclusion on 11/10/11.

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complaint will not be reopened or reviewed.”

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Id.

Also,

on

ECF No. 27, Ex. 1.

This grievance was

In response, the grievance coordinator stated, “You

October

8,

2012,

Mr.

This

Id.

Vaster

wrote

letters

to

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Superintendent Uttecht and CI General Manager Hudgins seeking relief

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from the claimed retaliation he was suffering and to be reinstated to

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his CI employment with back pay.

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received no response and continued to be denied the opportunity to

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work in the laundry room.

ECF No. 27, Ex. 2.

Mr. Vaster

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On March 14, 2013, Mr. Vaster filed this Complaint, ECF No. 6,

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asserting that Defendants violated his Equal Protection rights and

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retaliated against him for filing grievances.

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Court ordered Mr. Vaster to amend his Complaint, finding that his

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Equal Protection claim and his claims against Superintendent Uttecht

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were not supported by adequate factual allegations.

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Vaster did not amend his Complaint within the applicable deadline;

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accordingly, on July 31, 2013, the Court dismissed those identified

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claims.

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retaliation claim against Defendants Russell, Nelson, Hudgins, and

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Sabala.

ECF No. 8.

On June 3, 2013, the

ECF No. 7.

Mr.

The Court directed service as to the remaining

Id.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 8

On September 23, 2013, Defendants filed the instant Motion to

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2

Dismiss.

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response responsibilities as to a motion to dismiss based on failure

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to exhaust available administrative remedies.

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ensued.

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B.

Mr. Vaster was given notice regarding his

ECF No. 20.

Briefing

ECF Nos. 26-28.

Standard
A

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ECF No. 18.

motion

to

dismiss

for

failure

8

remedies is an unenumerated 12(b) motion.

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1108, 1119 (9th Cir. 2003).

to

exhaust

administrative

Wyatt v. Terhune, 315 F.3d

The Court may look outside the pleadings

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and decide disputed issues of fact to determine whether administrative

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remedies

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pleadings by considering the administrative documents provided by the

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parties as well as the documents filed in Mr. Vaster’s prior case, CV-

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11-5164-CI.

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C.

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exhausted.

Id.

The

Court

did

look

outside

the

Analysis
The Prison Litigation Reform Act (PLRA) provides in pertinent

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were

part:
No 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.

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42 U.S.C. § 1997e(a) (emphasis added).

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Supreme

Court

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(2006).

The

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exhaustion requirement a prisoner “must complete the administrative

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review process in accordance with the applicable procedural rules,

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including deadlines, as a precondition to bringing suit in federal

analyzed

this

Supreme

Court

exhaustion
held

that

In Woodford v. Ngo, the
requirement.
in

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 9

order

to

548

U.S.

satisfy

81
the

1

court.”

Id.

2

interpretation 1) ensures the agency has the opportunity to correct

3

its own mistakes before being sued in federal court, and 2) promotes

4

efficient claims resolution.
Here,

5

at

88.

Defendants

The

Supreme

Court

concluded

that

this

Id. at 89.

argue

Mr.

Vaster

failed

to

exhaust

his

6

administrative remedies as to his grievance that Defendants retaliated

7

against him by rejecting his requests to be returned to work at the CI

8

laundry site.

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must have been filed within twenty-one days of his June 9, 2011

Defendants submit Mr. Vaster’s retaliation-based claim

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Offender Complaint per Coyote Ridge grievance policies.

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Vaster failed to so file his retaliation-based grievance in this time

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period, Defendants contend Mr. Vaster failed to properly exhaust his

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administrative

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retaliation-based

15

Defendants.

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retaliated against him in 2011; rather he alleges they continue to

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arbitrarily deny him the opportunity to return to the laundry work

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site.

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Complaint is based in part on May and June 2011 incidents,3 the Court

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finds Mr. Vaster’s 2012 Offender Complaint timely grieves continued

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retaliation by Defendants.

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Mr. Vaster had already “grieved the issue” to conclusion on November

remedies

Mr.

as

to

grievance
Vaster

is

does

this
one
not

claim.
of

However,

continued

simply

allege

Because Mr.

Mr.

Vaster’s

retaliation
that

by

Defendants

Accordingly, although Mr. Vaster’s October 8, 2012 Offender

The grievance coordinator’s response that

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25

3

Mr. Vaster’s October 8, 2012 Offender Complaint references May 2012.
No. 27, Ex. 1.

ECF

The Court understands this to be a typo, as the incident

occurred in May 2011.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 10

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10, 2011, is inconsistent with the stance taken by Defendants in Mr.

2

Vaster’s prior lawsuit.

3

that Mr. Vaster’s October 8, 2012 Offender Complaint would not be

4

reopened or reviewed, Mr. Vaster was unable to further exhaust his

5

administrative remedies as to his retaliation claim.

6

Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (concluding

7

“that administrative remedies are exhausted when prison officials fail

8

to timely respond to a properly filed grievance”).

Because the grievance coordinator determined

See Boyd v.

9

Under the circumstances, the Court finds Mr. Vaster exhausted

10

his “available” administrative remedies as to his claim of continued

11

retaliation as of October 8, 2012.4

12

grievance steps as to his claim of continued retaliation.

13

Vaster had been restored to a laundry position at least twenty-one

14

days prior to his October 8, 2012 Offender Complaint, Mr. Vaster’s

15

Offender Complaint alleging continued retaliation would not be timely

16

and he would have failed to properly exhaust available administrative

17

remedies.

18

in

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exhausted his available administrative remedies as to his complaint

20

that he continues to be retaliated against for exercising his right to

21

file grievances.

22

2008)

the

Mr. Vaster followed the required
If Mr.

However, under the alleged facts and those facts set forth

documents

(analyzing

before

the

Court,

the

Court

finds

Mr.

Vaster

See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.
whether

the

prison’s

conduct

made

further

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25

4

Whether Mr. Vaster may recover back pay for the time period preceding
October 8, 2012, is a matter the Court may need to address at a later
date.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 11

1

administrative proceedings unavailable to the prisoner).

Mr. Vaster

2

persistently sought relief from the allegation that he wrongfully

3

stole laundry, which is the purported basis for Defendants’ continued

4

refusal to permit him to return to the laundry worksite.

5

v. Comstock, 425 F.3d 175, 177 (2d Cir. 2005) (noting that prisoner

6

failed to explain why he waited nearly two years to file a grievance).

7

Coyote Ridge had sufficient opportunity to address Mr. Vaster’s claim

8

of continued retaliation in an efficient manner.

9

D.

Cf. Williams

Conclusion

10

The Court finds Defendants failed to support their affirmative

11

defense of failure to exhaust available administrative remedies as to

12

Mr. Vaster’s claim of continued retaliation.

13

1119 (placing burden of proof on defendant).

14

HEREBY ORDERED:

See Wyatt, 315 F.3d at
Accordingly, IT IS

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1.

Defendants’ Motion to Dismiss, ECF No. 18, is DENIED.

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2.

The Clerk’s Office is to ISSUE a Notice Setting Scheduling

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18
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20

Conference.
IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to Mr. Vaster and counsel.
DATED this

13th

day of February 2014.

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s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\5031.dismiss.lc1.docx

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS- 12