Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stuart Othello Carter, Plaintiff -vsDouglas Freet, et al., Defendant(s) CV-04-0685-PHX-ROS (VAM) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Defendant Maskell's Motion to Strike, filed May 5, 2005 (#21) and Defendant Maskell's Motion to Dismiss, filed March 15, 2005 (#13). Background - Plaintiff, an inmate in the Arizona Department of Corrections, instituted this action on April 5, 2004, by filing his Complaint (#1), alleging three counts, including violations of Plaintiff's rights to (1) equal employment opportunities, (2) equal protection, and (3) freedom from retaliation. The Court screened the Complaint pursuant to 28 U.S.C. § 1915A(a), and dismissed Counts I and II, and all but Defendants Maskell, Meaney and Freet. An answer to only Count III was ordered from these Defendants. Count III alleges that Defendants Maskell, Meaney and Freet conspired to retaliate against Plaintiff as a result of his complaining about the process for assigning overtime work. Plaintiff alleges Defendants retaliated by bringing a false disciplinary charge against Plaintiff which resulted in his being terminated from his prison employment. Defendant Maskell being the only defendant served at the time, filed this Motion to Dismiss on March 15, 2005 (#13), arguing that Plaintiff had failed to exhaust his available administrative remedies, and therefore the Complaint was subject to dismissal. Plaintiff filed his Response (#18) on April 18, 2005. Defendant Maskell filed his Reply (#19) on April 22, 2005. On April 29, 2005, Plaintiff filed a surreply, entitled Response to Reply (#20). Motion to Strike - In his motion to strike, Defendant asserts that the surreply must
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be stricken as unauthorized under the rules. Plaintiff contends that the surreply was necessary to correct misrepresentations in the reply to the motion to dismiss about the available administrative remedies. Because the Court finds that the surreply does not alter the Court's analysis, and therefore no further reply from Defendant is necessary, the Court will deny the motion to strike. Motion to Dismiss - In their Motion (#13), Defendants argue that Plaintiff had available to him administrative remedies under Department Order 802 to grieve his retaliation claim, but that he failed to do so, and therefore dismissal is required under 42 U.S.C. § 1997e(a). Plaintiff responds (#18) with a series of arguments: 1. Plaintiff is not required to exhaust administrative remedies because he is not asserting a denial of due process. Plaintiff cites Nelson v. Murphy, 44 F.3d 497, 502 (7th Cir. 1995) in support of this argument. 2. 3. 4. Plaintiff did grieve his employment termination. Plaintiff has never been informed why his employment was terminated. Because Plaintiff was not provided written information by prison officials on his claims, he could not allege retaliation in a grievance. 5. Because disciplinary action was taken, the matter could not be grieved through the inmate grievance system 6. Plaintiff's later approval for work status establishes that his termination was for disciplinary reasons. 7. Plaintiff was referred to the Job Committee to appeal his termination.

Defendants Reply (#19) that: (1) Plaintiff's ignorance of the law is no excuse; (2) grievance of Plaintiff's termination did not exhaust on his retaliation claim; (3) Plaintiff had adequate information to assert a grievance on the retaliation; (4) Plaintiff's claims of retaliation are "staff" matters not "disciplinary" matters; and (5) appeal of Plaintiff's termination did not exhaust his retaliation claim. Defendants attach an Affidavit of COIII Larry Garner to establish that Plaintiff did not grieve his retaliation claim, and to provide the
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prison's grievance policy, Department Order 802. Plaintiff's surreply (#20) argues that because no formal disciplinary action was taken, no exhaustion through the disciplinary system was possible. Plaintiff attaches

correspondence on the dispute as evidence that his employment termination was for disciplinary reasons, and the grievance policy to show that disciplinary matters are not grievable. Exhaustion Requirement - Exhaustion of administrative remedies under the Prison Litigation Reform Act ("PLRA") is governed by 42 U.S.C. § 1997e(a). This statute 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). This language has been interpreted to require "that an inmate must exhaust [available remedies] irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741, n.6 (2001). Additionally, the Court should not "read futility or other exceptions into statutory exhaustion requirements" where the statute provides for no such exceptions. See id. The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 532 (2002). A plaintiff must fully exhaust his administrative remedies before filing a complaint. McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120. Standard for Granting Unenumerated Rule 12(b) Motion - The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S. Ct. 50 (2003). "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. "If the district court concludes that the prisoner has
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not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. "A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Id. at 1120. Exhaustion is an affirmative defense; establishing exhaustion of administrative remedies under the PLRA is not a pleading requirement or a jurisdictional prerequisite. Wyatt, 315 F.3d at 1119. Therefore, the defendant bears the burden of proving that plaintiff had available administrative remedies that he did not utilize. Id.; Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004). Where the defendant has met that burden by showing that plaintiff had available to him administrative remedies which he did not utilize, "the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120. Available Administrative Remedies - Defendants have shown that Plaintiff had available to him the standard inmate grievance procedures under Department Order 802 to grieve his retaliation claim, and that he failed to do so. That simple fact gets convoluted in confusion over the nature of Plaintiff's claim that must have been grieved. Plaintiff's Count III is based upon allegations of retaliation. Retaliation claims consist of three primary components: (1) the protected conduct of the prisoner giving rise to the retaliation (in this case, complaints about discrimination in overtime assignments); (2) the resulting retaliatory motivation; and (3) the unjustified harm inflicted on the prisoner (in this case, disciplinary action and termination of employment).1 In the unique context of this case, each one of these elements could be a subject of a prison grievance. Plaintiff could have grieved: (1) the original discrimination, (2) the retaliation, and/or (3) the discipline and employment termination. If, however, Plaintiff grieved either the discrimination and/or the discipline/termination, without specifically denoting the connecting retaliation, then the retaliatory conduct has not been grieved. It is the middle, "because of," component which is at the heart of a retaliation claim.

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But see Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) (noting that when a chilling effect on First Amendment rights is shown, no further showing of harm is required).

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The distinction between challenging the retaliation, and challenging the resulting discipline is not a novel one. For example, in Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997), the Ninth Circuit drew the distinction between prosecuting a claim of retaliatory discipline, and challenging the resulting discipline itself, and then considered the level of deference applicable in each.2 That does not imply that the two must always be challenged separately. For example, in Giano v. Goord, 380 F.3d 670, 673-74 (2d Cir.2004), the Second Circuit held that an inmate's reasonable interpretation of prison regulations justified his failure to exhaust when he raised allegations of retaliatory staff misconduct as a defense in disciplinary proceedings brought against him, rather than affirmatively pursuing the independent grievance system. Here however, Plaintiff never challenged the retaliation in any context. What he did attempt was to pursue grievances on both the original discrimination and the eventual discipline/termination. But, he did not grieve the retaliatory intent which resulted from the former and which was the motive for the latter. It is that retaliatory intent which forms the basis of Plaintiff's claim in this action. Plaintiff's Attempts to Excuse Non-Exhaustion - Plaintiff makes a series of arguments to excuse his failure to exhaust. None of them survives inspection. Nature of Claim - Plaintiff argues he is not required to exhaust administrative remedies because he is not asserting a denial of due process. Plaintiff cites Nelson v. Murphy, 44 F.3d 497, 502 (7th Cir. 1995) in support of this argument. However, Nelson does not address any issues of exhaustion under the Prison Litigation Reform Act ("PLRA") in 42 U.S.C. § 1997e(a), rather it focuses upon various abstention doctrines applicable in the federal courts when addressing issues affecting the states, including: Burford v. Sun Oil Co., 319 U.S. 315 (1943) (federal court should abstain when the federal case depends on the resolution of unsettled questions of state law within the competence of an administrative agency); and Younger v. Harris, 401 U.S. 37 (1971) (party to a state proceeding affecting
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The Hines court concluded that the discipline itself was entitled to deferential review under the "some evidence" standard, the propriety of the discipline to justify the retaliatory conduct was not entitled to such deference.

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important governmental interests must resolve the dispute in the state's preferred tribunal). Moreover, Nelson was decided on March 13, 1995 prior to the April 26, 1996 effective date of the Amendments to 42 U.S.C. § 1997e(a) making exhaustion mandatory. See Prison Litigation Reform Act of 1995, Pub.L. 104-134, § 101(a)[§ 803(d)] (amending Section 7 of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e). Contrary to Plaintiff's conclusions, the exhaustion requirement "applies to all inmate suits about prison life," Porter v. Nussle, 534 U.S. at 532, not just those asserting a denial of due process. Grievance of Termination - Plaintiff argues that he did grieve his termination. As discussed above, however, grievance of just the resulting retaliatory conduct, without alleging the retaliation, is not adequate to grieve the retaliation. If Plaintiff could show that he included in his employment termination grievance a claim of retaliation, and that he did so based upon some misleading by prison officials, then perhaps the Court could say the D.O. 802 procedure was not "available." See Giano, 380 F.3d at 673.Plaintiff has not suggested any such thing. Moreover, the documents provided by Plaintiff show that all but one grievance document was presented on or after April 5, 2004, the filing date of Plaintiff's complaint. 3 (Response, #18, Exhibit 2.) A plaintiff must fully exhaust his administrative remedies before filing a complaint. McKinney, 311 F.3d at 1199-1200. Exhaustion "while suit is pending" is not adequate. Lira v. Herrera 427 F.3d 1164, - - - - (9th Cir. 2005). Lack of Evidence - Plaintiff argues that because he has never been informed why his employment was terminated and was not provided written information by prison officials on his claims, he could not allege retaliation in a grievance. Plaintiff does not argue that he did not know of the retaliation, but merely that he did not have adequate evidence of it. While that might explain why a grievance of the retaliation could have been unsuccessful, it does not excuse failure to pursue the grievance. Booth, 532 U.S. at 741 (no futility exception).

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The only evidence of grievances prior to the filing date is reflected in the Inmate Letter Response, dated January 3, 2003, attached to the Response (#18) as Exhibit 1. That grievance was not about the retaliation, but alleged harassment by Defendant Meaney prior to the alleged retaliatory conduct.

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Limitation to Disciplinary System - Plaintiff argues that because disciplinary action was taken, the matter could not be grieved through the inmate grievance system. Plaintiff further argues his later approval for work status establishes that his termination was for disciplinary reasons. Again, this confuses the retaliatory conduct with the retaliation. While Department Order 802.01, paragraph 1.2.3 precludes use of the standard grievance system to challenge discipline, that does not preclude claims of retaliatory discipline. Again, if Plaintiff could show that he was induced to try to exhaust his retaliation claim in the wrong forum, then perhaps the Court could find exhaustion. But, Plaintiff has shown neither such inducement nor presentation of the retaliation claim in that forum. Appeal of Termination - Likewise, the Court finds no excuse in the fact that Plaintiff was referred to the Job Committee to appeal the termination of his employment. That presumably was the proper mode for challenging his termination. Again, however, Plaintiff confuses the process for challenging the resulting conduct with the process for challenging the retaliation. Lack of Formal Discipline - Finally, Plaintiff's Surreply argues that because no formal disciplinary action was taken, that he was denied his ability to grieve through the disciplinary system. Again, this confuses grieving the retaliatory conduct with grieving the retaliation Thus, it is irrelevant whether the discipline/termination was reviewable through the grievance or disciplinary systems. Moreover, the disciplinary conduct itself is distinct from the retaliatory conduct behind it. Thus, while any discipline itself may have only been reviewable through disciplinary review system, that would not preclude Plaintiff from having challenged the retaliatory motivation behind the institution of the discipline. Summary - Defendants have shown that Plaintiff had available to him administrative remedies under the general grievance procedures under Department Order 802, and that he failed to utilize those remedies prior to filing this suit. Therefore, Plaintiff failed to exhaust his administrative remedies and his Count III must be dismissed without prejudice.
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IT IS THEREFORE ORDERED that Defendant Maskell's Motion to Strike, filed May 5, 2005 (#21) is DENIED. IT IS FURTHER ORDERED that Defendant Maskell's Motion to Dismiss, filed March 15, 2005 (#13) is GRANTED. DATED this 23rd day of November, 2005.

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