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

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND, Bar No. 022124 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-7690 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KEITH ROBERT BARDEN, No. CV 04-0138 PHX EHC (GEE) Plaintiff, v. DORA B. SCHRIRO, et al., Defendants. Defendant,1 by and through undersigned counsel, move to dismiss Plaintiff's (Keith Robert Barden, hereinafter "Barden") Complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.2 Inmate Barden failed to exhaust his prison administrative remedies prior to initiating his §1983 lawsuit, as mandated by 42 U.S.C. § 1997e(a). Because inmate Barden failed to exhaust his prison administrative remedies, he failed to satisfy a condition precedent to filing suit and is prohibited from bringing or continuing to pursue the underlying action. Thus, Defendant's Motion to Dismiss is supported by the following Memorandum of Points and Authorities. DEFENDANTS' UNENUMERATED RULE 12(B)(6) MOTION TO DISMISS

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Dora Schriro

On July 29, 2005, Plaintiff changed his legal name from Keith Robert Barden to Katherine Elizabeth Barden.
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Case 2:04-cv-00138-EHC-GEE

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RESPECTFULLY SUBMITTED this 28th day of September, 2005. Terry Goddard Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES FACTS Barden is a convicted felon serving a ten (10) year sentence for Attempted Sexual Conduct with a Minor, a class 3 felony and dangerous crime against children in the second degree. (Barden's Adult Information Management System ("AIMS") report is available for this Courts in camera review.) On July 28, 2004, Barden filed his First Amended Complaint pursuant to 42 U.S.C. § 1983 against various Arizona Department of Corrections (ADC) medical and mental health care professionals and staff alleging that he has Gender Dysphoria and that Defendants have refused to provide him with any treatment for his condition. [Dkt. 7.] Barden also alleges that Defendants have ridiculed him regarding his condition. Id. Barden requests that the ADC medical and/or mental health staff provide him with hormone therapy. Id. Based on the Court's Screening Order pursuant to 28 U.S.C. § 1915A, Defendant will respond to Barden's Eighth Amendment claim of inadequate medical treatment.3 [Dkt. 8.] In general, verbal intimidation is not a constitutional tort. Allen v. Scribner, 812 F.2d 825, 827 (10th Cir. 1979)). In Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987), the Ninth Circuit held that "it trivializes the Eighth Amendment to believe a threat constitutes a constitutional wrong." Id. at 925. Thus, allegations of verbal harassment or abuse are insufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). 2
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At all times relevant to the events in inmate Barden's Complaint, the ADC's inmate grievance process was governed by Department Order ("DO") 802. ¶¶ 1-3, Affidavit of Gary Pinkstaff, attached hereto as Exhibit A. The Inmate Grievance System provides that an inmate may use the grievance process for issues relating to "[p]roperty, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." Id. at Attachment 1. The ADC's inmate medical grievance process is governed by DO 802.11. Id. The medical grievance process works as follows: (1) the inmate shall first attempt to resolve the complaint informally, prior to filing a formal grievance, in accordance with the procedure outlined in section 802.08. If the complaint remains unresolved, the inmate shall submit the formal grievance within ten calendar days from the date the inmate receives the CO III's response to the Inmate Request/Response id.; (2) upon receipt, the Grievance Coordinator forwards formal grievances presenting medical issues to the Facility Health Administrator ("FHA"). Within thirty calendar days of receipt of the grievance, the FHA shall investigate the complaint and provide the inmate with a written response specifying the reasons for the decision id.; and, (3) if the inmate receives an unfavorable response from the FHA he may appeal to the Director via the Grievance Coordinator within ten calendar days. Within thirty calendar days of receipt of the grievance appeal, the Deputy Director for Inmate Health Services, or designee, who investigates the complaint, prepares a written response and forwards the response to Legal Services for review and comments as appropriate, and then forwards the response to the Director for review and signature. Id. The Director's response is final, thereby exhausting available administrative remedies through the ADC's Inmate Grievance System for medical grievances. Id.

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The medical grievance process, as described above, is available to inmate Barden and there is the possibility of at least some kind of relief from ADC if the grievance process is followed. Exhibit A at ¶ 4. A review of the Health Services computerized database from July 1, 2002 to present, establishes that inmate Barden did not follow the procedure contained in DO 802 §§ 08 and 11 and did not file any medical grievances appeals regarding Gender Dysphoria and/or Gender Identity Disorder or the failure to provide medical or mental health treatment for the above, to the Director's level during the relevant time period. Id. at ¶¶ 57. In lieu of following the Inmate Grievance Process for medical issues, on September 9, 2003, inmate Barden submitted an inmate letter directly to the Director of ADC stating "all that I am seeking is to be comfortable in my own body and be relieved to (sic) the constant depression and anxiety." Exhibit A. ¶ 8 and Attachment 2. On October 28, 2003, Dr. Pam McCauley, Mental Health Program Manger, responded to Barden's September 9, 2003, inmate letter. Id. at Attachment 3. In her response, Dr McCauley noted that ADC policy regarding gender reassignment and Gender Identity Disorder was explained to [Barden] in January, 2001, and any future discussions about his health should be forwarded in a Health Needs Request. Id. Because inmate Barden did not properly take each step in the administrative process by following the rules the ADC has established for that process, he did not exhaust his available administrative remedies related to Gender Dysphoria and/or Gender Identity Disorder or the failure to provide medical or mental health treatment. Exhibit A, ¶ 9.

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II.

LEGAL ARGUMENT A. Plaintiff's Complaint Must Be Dismissed For Failure to Exhaust Administrative Remedies. The Prison Litigation Reform Act of 1996 ("PLRA"), mandates exhaustion of

administrative remedies prior to suit for all inmate claims "brought with respect to prison conditions under section 1983 of this title, or any other federal law." 42 U.S.C. §1997e(a); Porter v. Nussle, 534 U.S. 516, 517 (2002). The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated 12(b) motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion 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 not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120. A court may not stay an action to provide the plaintiff a further opportunity to exhaust. McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). The express language of the PLRA requires exhaustion of all administrative remedies before an action may be brought. The statute provides in pertinent part: [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). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter, 534 U.S. at 524. The process of exhaustion affords corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. Id. Exhaustion of administrative remedies not only obviates the need for litigation in some instances by resolving inmate 5
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complaints, the internal review also filters out some frivolous inmate claims. Id. More importantly, in cases that proceed to court, an administrative record is established which clarifies the contours of the controversy. Id. In the instant case, inmate Barden failed to initiate or properly follow each step of the Inmate Grievance Process for medical issues established by ADC. Because inmate Barden failed to accomplish the necessary steps of the grievance process, he has not properly exhausted his administrative remedies and therefore dismissal of his Amended Complaint is required. III. CONCLUSION Based upon the reasons set forth above, Defendant respectfully requests that the court dismiss Barden's Complaint in its entirety. RESPECTFULLY SUBMITTED this 28th day of September, 2005. Terry Goddard Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

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Original e-filed this 28th day of September, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Keith Robert Barden, #155866 ASPC ­ Winchester - Tucson P.O. Box 24407 Tucson, AZ 85434 s/A. Palumbo____ Secretary to: Catherine M. Bohland IDS05-0269/RSK:G #925209