Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

SRM

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Although the Court does not reach the merits in this Order, th e C ourt notes that these claims arguably are frivolous. The claim involving noodles on two occasions containing eggs is arguably de minimis. As to the other claim, the need to preserve the safety of guards and inmates d u r i n g a p rison lockdown following a hostage taking incident arguably justifies a temporary denial of special diets.
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UNITED STATES DIS TRICT COURT DIS TRICT OF ARIZONA
Faron Earl Tisher, S r., Plaintiff -vsDora B. S chriro, et al., Defendant(s) CV-04-0434-PHX-EHC (ECV) ORDER

Under considerat ion are Defendant Compass Group USA, Inc.'s M otion for Summary Judgment, filed M ay 2, 2005 (#37); the "Arizona" Defendant s ' M otion for Summary Judgment, filed M ay 3, 2005 (#43); and Plaintiff's M otion to Vacate Response, filed June 3, 2005 (#54). BACKGROUND Plaintiff commenced this action on M arch 1, 2004, by filing his Comp laint (#1) for violations of his civil rights, pursuant to 42 U.S.C. § 1983, arising out of two incidents: (1) Plaintiff, a practicing Sikh M uslim, subject to a vegetarian diet, was s erved two meals in December 2003 with noodles containing eggs; and (2) Plaintiff was denied his special diet during a prison lockdown in January 2004.1 The lookdown occurred as a result of a highly publicized episode where prisoners took several guards hostage in a prison guard t ow er. (Arizona SOF, #40 at ¶ 3-5.) MOTION TO VACATE On M ay 6, 2005, Plaintiff filed a Response [dkt . 46] t o the M otions for Summary Judgment, without having the benefit of the M agistrate Judge instructing him on the

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requirements of a response.

After the M agistrate Judge issued instructions, Plaintiff filed

an amended Response (#55). Plaintiff filed a M otion to Vacate (#54) his original Response. Defendants object to the Court considering the amended Response because it was filed one day late. The Court finds this limited delay excusable in the circumstances and w ill

vacate the original Response and consider the amended Response. EXHAUS TION OF ADMINIS TRATIVE REMEDIES Legal S tandard - Both pending motions for summary judgment assert that Plaintiff's Complaint must be dismis s ed because he failed to exhaust administrative remedies. The failure to exhaust adminis t rat ive remedies is properly raised in an unenumerated Rule 12(b) motion to dismiss. See Wyatt v. Terhune, 315 F .3d 1108, 1119 (9th Cir. 2003), cert. denied, 124 S. Ct . 50 (2003); see also Ritza v. International Longshoremen's and Warehousemen's Union, 837 F.2d 365, 368 -369 (9th Cir. 1988) ("[F]ailure to exhaust nonjudicial remedies should be raised in a motion to dismiss, or be t reat ed as such if raised in a motion for summary judgment ."). Accordingly, insofar as the motions for summary judgment seek

relief on the basis of a failure to exhaust, the Court will construe them to be motions to dismiss. Exhaustion of administrative remedies under the Prison Lit igation Reform Act ("PLRA") is governed by 42 U.S.C. § 1997e(a). This statute p rovides 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." exhaustion requirement is very broad. 42 U .S.C. § 1997e(a). The

It "applies to all inmate suits about prison life, Porter v. Nussle, 534

whether they involve general circumstances or particular episodes."

U.S. 516, 532 (2002). Furt her, t he language of 42 U.S.C. § 1997e(a) has been interpreted to require "that an inmate must exhaust [available remedies] irrespective of the forms of relief sought and offered t hrough administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Additionally, the Court should not "read futility or other exceptions into

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Discussion - The prison's inmate grievance system, detailed in Department Order ("DO") 802, provides a four-tiered procedure, consisting of an informal letter, formal (Compass SOF, #38 at

grievance, institutional appeal, and finally a central office appeal. ¶ 11-12; Ariz. SOF, #40 at ¶ 21.)

Plaintiff submitted three informal inmate lett ers complaining of the egg noodles, submitted an inmate letter complaining of the failure to provide special diets during the lockdow n, w aited at least ten work days for responses and submitted a formal Inmate Grievance complaining of the egg noodles. These actions do not constitute exhaustion of administrative remedies. Plaintiff's formal Inmate Grievance complaining of the egg noodles was returned unprocessed because he failed to attach the responses to his inmate letters. T he rejection of his informal grievance included the notice that Plaintiff had the right to "appeal the Grievance Coordinator's decision to the Unit Warden/Deputy Warden." Exhibit B, Grievance 2/8/4.) Plaintiff did not make such an appeal. Plaintiff did not pursue his claim bas ed on the denial of his special diet during the lockdown beyond the level of the informal inmate letter, despite being able to proceed to the formal grievance process after the ten w ork day period to respond to the inmate letters had elapsed. (Arizona SOF, #40, Exhibit A, DO 802.07, paragraph 1.2.4.) Plaintiff had available to him the full four-tiered series of administrative procedures spelled out in DO 802. The issues in Count I (free exercise re lockdown) were not (Res p onse, #55,

presented beyond the informal inmate letter level. The issues in Count IV (free exercise re egg noodles) were not presented beyond the formal grievance level. Accordingly, P laintiff

has unexhausted administ rat ive remedies applicable to both of these claims, and they must be dismissed. Because these unexhausted claims constitute the whole of the remaining

Complaint, the Complaint and this action must also be dismissed. Accordingly, IT IS THEREFORE ORDERED that Defendant Compass Group USA, Inc.'s M otion

28 for Summary Judgment, filed M ay 2, 2005 (#37) is construed as a motion to dismiss and is Case 2:04-cv-00434-EHC-ECV Document 64 3 - Filed 02/21/2006 Page 3 of 4 -

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GRANTED. IT IS FURTHER ORDERED that Arizona Defendant's M otion for Summary Judgment, filed M ay 3, 2005 (#43) is construed as a motion to dismis s and is GRANTED. IT IS FURTHER ORDERED that Plaintiff's M otion to Vacate Response, filed June 3, 2005 (#54) is GRANTED. IT IS FURTHER ORDERED t hat Plaintiff's Complaint (#1) and this action are DIS MIS S ED WITHOUT PREJUDICE. DATED this 15th day of February, 2006.

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