Free Reply - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA DANNY MILLER, Plaintiff, v. DONALD SLOAN, et al., Defendants. Defendants Macabuhay, Sloan, and Pratt, by and through undersigned counsel, reply in support of their Motion as follows: Plaintiff admits that he did not "specifically address his claim that his medication was denied due to cost consideration [sic]." (Response at 1.) Plaintiff argues, however, that in his August 18, 2003 grievance he did state "I request appropriate medical treatment for my spice induced medical symptom complaint. (e.g., diet, medication)." (Response at 2.) Plaintiff cites Kikumara v. Hurley, 242 F.3d 950 (2001) and Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) to support his argument that prisoner's grievances are to be construed liberally and are not required to be detailed. Zipes is not a prisoner lawsuit and does not deal with exhaustion under the PLRA. The court in Kikumara found that the inmate Plaintiff satisfied the DEFENDANTS' REPLY IN SUPPORT OF THEIR UNENUMERATED RULE 12(B)(6) MOTION TO DISMISS No. CV 04-19-PHX-DGC (LOA)

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exhaustion requirements of the PLRA even though he did not specifically set forth his issue in his grievance. The court in that case found that Plaintiff had submitted lengthy written administrative appeals which adequately revealed his claim. Kikumara, 242 F.3d at 956. The PLRA's exhaustion requirement is designed to "afford [ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 US 516, 524-25 (2002). "In order to exhaust, therefore, inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004). Simply stated, prison officials should be given fair notice of the problem that will form the basis of an inmate's lawsuit. In his grievance in case no. L15-081-003, Plaintiff states that he has been denied an appropriate diet. Other than the portion of the grievance cited by Plaintiff, the only reference to medication is a note stating "I was issued Pepsid for unrelated symptoms; the Pepsid does not resolve the spice induced symptoms I have." (See Exhibit 4 attached to Defendants' Motion to Dismiss.) In his grievance appeal in case no. L15-081-003, the only issue discussed by Plaintiff is his request for a no spice diet. (See Exhibit 6 attached to Defendants' Motion to Dismiss.) Unlike the plaintiff in Kikumara, Plaintiff has not set forth enough information to put the Defendants on notice of his claim that he was being denied Bentyl due to cost considerations. Additionally, a prisoner is required to file a grievance against the person he ultimately seeks to sue. Ornelas v. Giurbino, 358 F.Supp.2d 955, 962 (S.D.Cal. 2005). This assures, as envisioned under the PLRA, that the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court. Id. No where in his inmate grievance paperwork in case no. L15-081-

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003 does Plaintiff refer to Defendants Sloan and Pratt, and his only reference to Dr. Macabuhay relates to his "no spice" diet. Therefore, contrary to Plaintiff's assertions, the Defendants were not given an opportunity to address Plaintiff's claim that he was being denied medication due to its cost. Plaintiff also cites a myriad of reasons for his failure to submit a proper grievance, e.g. dyslexia, lack of legal training, vagueness of PLRA, etc. Plaintiff's contentions lack merit. Filing a grievance does not involve a difficult or elaborate process. All that Plaintiff, or any other inmate housed in ADC's custody, is required to do to present a grievance is complete the appropriate form, which includes providing a description of the grievance and a proposed resolution. (See Exhibit 4 attached to Defendants' Motion to Dismiss.) Plaintiff was not prevented from filing a proper grievance regarding Bentyl and the alleged cost issue. Should the Court hold that Plaintiff did not exhaust his administrative remedies, Plaintiff requests this Court stay this matter until he has done so. (Response at 3.) 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). Finally, Plaintiff argues that the Defendants have waived any failure to exhaust argument because it was not raised in their Motion for Summary Judgment. Exhaustion is an affirmative defense; establishing exhaustion of administrative remedies under the PLRA is not a pleading requirement or a jurisdictional prerequisite. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). Therefore, the defendant bears the burden of proving that plaintiff had available administrative remedies that he did not utilize. Id. Despite Plaintiff's contentions, Defendants have not waited until "the eleventh hour" to raise the affirmative defense of failure to exhaust. Defendants appropriately raised this defense in their Answer by affirmatively alleging that Plaintiff failed to exhaust prison administrative remedies as

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are available; and therefore, his claims are barred by 42 U.S.C. § 1997e(a). (Dkt. 63 at ¶ 16.) Defendants' Motion is, therefore, not "unfairly prejudicial." For the above stated reasons, Defendants' Motion to Dismiss should be granted. RESPECTFULLY SUBMITTED on this 13th day of March, 2006. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing electronically filed this 13th day of March, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 13th day of March, 2006, to: Danny L. Miller, # 109729 Arizona State Prison Complex ­ Tucson Santa Rita Unit ­ 3-D-17 P.O. Box 24406 10012 South Wilmot Road Tucson, AZ 85734-4406 Plaintiff Pro Per s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0395/RM#G2003-04642

950244

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