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

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TERRY GODDARD ATTORNEY GENERAL PAUL E. CARTER (014140) Assistant Attorney General 177 N. Church Avenue, Suite 1105 Tucson, AZ 85701-1114 (520) 388-7128 Fax (520) 628-6050 [email protected] Attorneys for State Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BARRY NORTHCROSS PATTERSON, Plaintiff, v. DORA SCHRIRO, et al. Defendants. SUPPLEMENTAL NONENUMERATED RULE 12(b) MOTION TO DISMISS No. CV 03-2178-PHX-PGR (VAM)

Defendant Martinez brings this Supplemental Motion to Dismiss Plaintiff's Complaint, under Rule 12(b), due to his failure to exhaust administrative remedies prior to filing suit and, alternatively under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. I. Procedural Background. This Court dismissed this action based on Patterson's failure to exhaust administrative remedies and entered Judgment in Defendants' favor on March 31, 2006. Dkt. 49, 50. After Patterson appealed, the Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded the case. Dkt. 56 at 2. It affirmed this Court's dismissal of Count VII, but reversed and remanded with respect to Count VI, "for the district court to consider Patterson's claim regarding his inmate trust account in light of our supervening decision in Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) ("a prisoner need not press on

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to exhaust further levels of review once he has already received all `available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available") (emphasis added)." Id. II. Facts. In Count VI, Patterson takes issue with the manner deductions were made from his Inmate Banking Account in December 2003 (the "Inmate Banking Claim"). Specifically, Patterson claims that, on December 11, 2003, he received $100 in the mail, and that Arizona Department of Corrections ("ADC") Banking Staff, including Defendant Martinez, used those funds to reimburse the Department for various legal fees and expenses that Patterson had incurred, leaving him with an account balance of 32 cents. Amended Complaint at 6D, ¶ 3. Whereas he notes that 32 cents is not enough money with which to buy a stamp, id., he does not claim that he was ever denied the opportunity to send out any mail due to insufficient funds in his account. On December 26, Patterson received another $100, from which ADC Banking, though not Defendant Martinez, deducted approximately $70 for various legal expenses he had incurred. Id. He claims that, on January 9, 2004, he received a printout indicating that he had a spendable balance of $31.26 in his Inmate Banking Account. Id. Yet, when he sought to make purchases at the "store," he was told that his account was "D.O. from 12/27/03 to 1/25/04." Id. He was denied legal supplies on January 2, 2004, because he did not submit a disbursement form which he claims was attached to his request. Id. In sum, Patterson's sole allegation against Defendant Martinez is that she applied funds to cover various debts of his that he has not disputed. Indeed, he does not even allege that he was denied the ability to mail any particular correspondence as a result of the subject deductions from his Inmate Banking Account. Patterson acknowledges that administrative remedies existed with respect to his Inmate Banking Claim. Id. at ¶ 5. He further admits that he did not seek administrative 2

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relief as to Count VI. Id. As an excuse for his failure to exhaust, Patterson claims that, "I was told deductions are non-grievable by staff ­ CO III Schmier + others." Id. However, he also stated that he previously grieved a similar challenge to a deduction from his Inmate Banking Account, but was dissatisfied with the result of it. See Patterson's Response to Defendants' Motion to Dismiss at 3. Id. Patterson has never provided any additional details about this alleged statement by CO III Schmier or how he reconciled it with his prior experience that complaints concerning banking problems were grievable. Of note, Schmier only would have interacted with Patterson, as his CO III, from July to September 2003. See Affidavit of Scott Schmier, dated July 13, 2005, at ¶ 8, a copy of which is annexed as Exhibit A.
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The deductions were not made until about three months later. Amended

Complaint at 6D, ¶ 3. Pursuant to ADC Department Order ("DO") 905.1, "[t]he Department shall act as a custodian for all funds received for inmates and is limited to only inmates' trust accounts as accounted for on the Inmate Banking System." See Exhibit B. ADC's Inmate Banking Policy does not contain its own, independent procedure by which an inmate can complain about the management of his Inmate Banking Account. Id. According to Section 1.1.1 of DO 802.01, inmates may use ADC's grievance process for issues relating to "property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Emphasis added). See Exhibit C. "Written Instructions," as the term is used in DO 802, includes Department Orders. DO 802.13 § 1.1.5.1. As he conceded in his Amended Complaint, Patterson's claim against Defendant Martinez regarding the latter's application of funds deposited into his

The original Schmier Affidavit was filed as Exhibit D to Defendants' Separate Statement of Facts filed in Patterson v. Maciel, et al., No. CIV 03-2179-PHX-PGR (VAM). Dkt. 30. Defendant respectfully requests that the Court take judicial notice that this affidavit forms part of the record in that case and consider it substantively solely to show the time period when CO III Schmier could have made the alleged statement to Patterson.
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Inmate Banking Account was grievable through the ADC grievance procedures, whether as a complaint about his property, institutional procedures, or Department Written Instruction DO 905. III. Applicable Law. The PLRA requires that inmates exhaust their administrative remedies before filing suit against prison officials under federal law: [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). The exhaustion provisions of § 1997e(a) are mandatory. Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct. 1819, 1824 (2001) (holding that exhaustion of prison administrative grievance procedures is required regardless of the limitations to relief offered through the administrative procedures). In enacting the PLRA, Congress did not intend to have the courts examine the effectiveness of administrative remedies but rather to have them focus solely on whether an administrative remedy program is available in the prison involved. Id. at 739-41, 121 S. Ct. at 1824-25. The previously recognized exceptions to the exhaustion requirement, such as futility, no longer apply. Id. at 741 n.6, 121 S. Ct. at 1825. Thus, whether the inmate is seeking injunctive or monetary relief, he must first exhaust all administrative relief available. The PLRA's exhaustion requirement applies to all prison issues whether they involve general prison conditions or particular episodes and to any wrong that a prisoner alleges. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 991 (2002). The Ninth Circuit has held that failure to exhaust non-judicial remedies should be treated as a matter in abatement, subject to a non-enumerated Rule 12(b) motion to dismiss, rather than a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The Wyatt court also determined that, in considering such an exhaustion motion, 4

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the Court "may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. Finally, Wyatt also concluded that "if the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust ­ procedure closely analogous to summary judgment ­ then the court must assure that [the plaintiff] has fair notice of his opportunity to develop a record. Id. at 1121, n.14. In Brown v. Valoff, the Ninth Circuit considered two cases in which prisoners utilized the California Department of Corrections' inmate grievance process, but after receiving responses at intermediate levels of appellate review, failed to pursue their appeals up to the third and final level of review. 422 F.3d at 929. The Ninth Circuit held that "a prisoner need not press on to exhaust further levels of review once he has either received all `available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Id. at 935. Because exhaustion is an affirmative defense, the Brown court concluded that the defendants bore the burden of demonstrating "that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of the process." Id. at 936-37. In Brown, the prisoners availed themselves of the inmate appeals process. The issue facing the Brown court was therefore whether exhaustion had occurred or whether avenues of administrative relief remained available in light of the responses the prisoners received to their administrative appeals. The Ninth Circuit found that exhaustion occurred when the prisoners' appeals were granted and an investigation into their complaitns was conducted. Id. at 937-39. The Ninth Circuit concluded that no further relief was available as the Defendants had provided no evidence in the record to the contrary. Id. at 938-39. After the Brown v. Valoff decision, the United Stated Supreme Court decided Woodford v. Ngo, 548 U.S. ____, 126 S. Ct. 2378 (2006), in which it considered whether an inmate could exhaust prison administrative remedies by filing an untimely or otherwise 5

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procedurally defective administrative grievance or appeal.

126 S. Ct. at 2382.

The

Woodford court rejected the inmate plaintiff's procedural default argument, holding that the PLRA calls for proper exhaustion. See id. at 2385. ("Proper exhaustion demands

compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.") Brown therefore does not survive Ngo to the extent that the former suggests that an inmate may be able to rely on the statement of a prison administrator who is not actually responding to a grievance and which contradicts the clear language of the administrative procedures at issue. In other words, when a prison administrator

volunteers information that contradicts known, explicit, written policy setting forth the process required to exhaust properly, that information should, by definition, be unreliable. In Brown, the information relied upon by the complaining inmate was made in the context of an actual, ongoing grievance process. 422 F.3d at 935-39. The Brown court therefore stated that the inmate plaintiff did not have to "press on to exhaust further levels of review." The Brown court thereby indicated that the inmate must initiate a grievance process and be told that no further remedies are available by a prison administrator considering his actual grievance, before he can be excused from pressing on and properly completing the exhaustion process. After all, a prison grievance system would be rendered meaningless if an inmate could allege that some randomly-solicited prison administrator orally provided him with contradictory information about whether a hypothetical complaint could be grieved, without the benefit of considering an actual, written grievance and then be excused from availing himself of that process. IV. Patterson Failed to Exhaust Administrative Remedies. Pursuant to Wyatt's instruction that it could decide disputed issues of fact when considering a motion to dismiss for failure to exhaust, this Court previously considered Patterson's conclusory claim that an ADC employee, CO III Schmier, told him that the 6

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Banking Claim was not grievable and rejected it: Plaintiff's claim in Count VI is that money in his trust fund account is first applied to debts so that he had no money left to purchase stamps. Plaintiff asserted in his verified Amended Complaint that he was told that deductions are non-grievable by staff and specifically, by CO III Schmier. (Am'd Compl. at 6D.) In his response, Plaintiff has not further developed any details regarding who told him that the issue was not grievable. Instead, he admits that the first grievance he filed three years ago was a challenge to the deduction of money from his trust account. (Resp. at 3.) It is plain, then, that Plaintiff has previously used the grievance process for a similar challenge. In addition, Plaintiff asserts that he was displeased with the result of his first grievance because he did not receive a solution, and the process, was in his opinion, "useless." (Resp. at 3.) Since that time, he has filed hundreds of grievances, and he claims to be an expert on the system. He vehemently embraces the belief that the system provides automatic biased denials of prisoner claims. In other words, he believes that the system will not resolve his complaint and is therefore ineffectual. Further, Plaintiff's claim that he had been threatened with disciplinary action for filing grievances appears to be halfhearted in light of his assertions that he has filed one hundred grievances and been labeled an abuser of the system. Dkt. 49 at 6-7. As will now be demonstrated, the intervening Brown decision should not change the Court's conclusion. First of all, and contrary to what Patterson did here, the inmate plaintiffs in Brown actually availed themselves of the prison grievance process, albeit only partially. They did not complete the subject processes after prison administrators reviewing their grievance appeals allegedly informed them that they had received all that the process could provide them and that no further remedies were available. 422 F.3d at 930-33. In that situation, the Brown court concluded that the inmate plaintiffs did not need to "press on" and continue the appellate process. Id. at 935. Here, on the other hand, Patterson chose to bypass ADC's grievance process completely. He therefore cannot have been "reliably informed" by a prison administrator that no further remedies were available with respect to his complaint about Inmate Banking, which did not even accrue until months later. Patterson's situation highlights exactly why Brown should only apply to an administrator's response to an actual, 7

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written grievance about which he would have enough specific and verifiable information about which to comment knowingly. No reasonable reading of DO 802 suggests that it does not apply to Patterson's Inmate Banking Claim. It was at least incumbent on him to initiate a grievance process to provide ADC administrators with an opportunity to review his complaint. If he had done so and an administrator conducting a review of his grievance advised Patterson that his particular complaint was not grievable and that he had no further remedies available under DO 802, then and only then might Brown come into play. Since Patterson did not give ADC officials a first crack to resolve his complaint about his Inmate Banking Claim, he failed to exhaust available administrative remedies and this action must be dismissed. Following the Brown decision, the Supreme Court held that, under the PLRA, inmate plaintiffs must properly exhaust administrative remedies, by complying with the "agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford, 126 S. Ct. at 2385. Here, by completely ignoring ADC grievance procedures, Patterson cannot reasonably argue that he complied with the timeframes contained in DO 802 and that while he was pressing on and properly exhausting, he received reliable information that caused him to abandon that process. Even if the Court determines that Brown could arguably apply to alleged oral representations about the availability of relief under prison grievance procedures for some kind of hypothetical claim relating to Inmate Banking made by prison officials who are not involved in reviewing an actual grievance or appeal, it should not do so under the facts at issue. Patterson has never developed any details regarding his assertion that CO III Schmier or others told him that his Inmate Banking Claim was not grievable. He has, however acknowledged that he pursued a prior grievance challenging the deduction of money from his Inmate Banking account. Response to Motion to Dismiss at 3. Though Patterson was 8

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displeased with the result of that grievance, id., his dissatisfaction is irrelevant to the issue of whether his complaint was grievable in the first place. Since his prior banking grievance, Patterson claims to have pursued hundreds more grievances and touts himself as an expert in DO 802. Id. Under these circumstances, any information he received which suggested that he could not grieve a complaint about DO 905, a Written Instruction, would necessarily be unreliable. At a minimum, if he had received such conflicting information, it was incumbent on Patterson to inquire further, preferably in writing, to confirm what information he should rely on. Finally, CO III Schmier was only assigned as Patterson's CO III from July to September 2003. Exhibit A at ¶ 8. As such, for Patterson's argument to hold up, the Court would have to accept the proposition that CO III Schmier told him something in response to a hypothetical, oral complaint about Inmate Banking deductions no later than September of 2003. It would also need to find that whatever CO III Schmier may have said, which was admittedly inconsistent with both his own experience and the terms of DO 802, was for some reason reliable. Finally, the Court would also have to conclude that Patterson was unable to disavow himself of the falsity of the information provided by CO III Schmier for the next three months, when the Inmate Banking Claim accrued. DO 802's terms clearly provided Patterson with an administrative remedy to pursue. Nothing CO III Schmier may have told Patterson three months before his alleged problems with Inmate Banking arose could constitute reliable information regarding the nongrievability of the Inmate Banking Claim under DO 802. Since Patterson failed to establish the he should be excused from the PLRA's exhaustion requirement, that concession of nonexhaustion provides a valid ground for dismissal. Wyatt, 315 F.3d at 1120. V. The Complaint Fails to State a Claim Against Defendant Martinez. Patterson's sole allegation against Defendant Martinez is that she applied money in his Inmate Banking Account to debts that he does not dispute. Amended Complaint at 6D, 9

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¶3. He does not claim that she misapplied the funds or that her actions harmed him in a constitutional sense. Id. After all, he does not claim that her administration of his account caused him to be denied store purchases three weeks later or that he actually requested and was denied stamps needed to correspond with his family. All he has alleged is that she and other Inmate Banking staff applied his funds to reimburse his acknowledged debts to ADC, leaving him with only 32 cents in his account. Since these facts do not show that Defendant Martinez was personally involved in a constitutional violation that caused him any harm, Patterson's allegations fail to state a claim upon which relief can be granted. See King v. Atiyeh, 814 F.2d 565, 567, 568 (9th Cir. 1987) (to be liable under § 1983, government officials must play an affirmative role in the constitution al deprivation alleged). Alternatively, since Patterson failed to grieve the subject deductions under DO 802, he should be barred from now arguing that ADC's grievance system would not have provided him with an adequate remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized and intentional deprivation of inmate property by prison officials does not state a cognizable § 1983 claim if the prisoner has an adequate postdeprivation remedy under state law). Patterson's allegations against Defendant Martinez fail to state a claim upon which relief can be granted, because he had additional state-law remedies to pursue. As set forth above, his Inmate Banking complaints were clearly grievable under the terms of DO 802. Additionally, grievances concerning complaints about inmate property specifically require that reimbursement be approved by way of ADC's grievance system before he can file a claim with Arizona State Risk Management. See Exhibit D, DO 909.12. § 1.1 (excerpt). This dovetails with Brown's alternative holding that exhaustion can be excused if the inmate "received all `available' remedies at an intermediate level of review. . . ." 422 F.3d at 935. Whereas the Brown defendants did not show that additional

administrative remedies remained available after they received responses to their 10

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intermediate grievance appeals, that is not the case here. Patterson completely bypassed ADC's grievance system. He therefore failed to pursue two facially adequate and available, post-deprivation remedies under state law, a DO 802 grievance and a Risk Management claim. His § 1983 claim is therefore barred under Hudson. VI. Conclusion. Based on the foregoing, Patterson failed to exhaust his administrative remedies before bringing this action as the PLRA requires. Alternatively, his allegations fail to state a claim upon which relief can be granted. Defendant Martinez therefore respectfully requests that the Court enter its Order, granting his Motion to Dismiss, entering judgment in his favor, dismissing Patterson's claims without prejudice, awarding his costs of defense and attorney's fees pursuant to 42 U.S.C. § 1988, and granting such other and further relief as to it seems just and proper RESPECTFULLY SUBMITTED this 1st day of February, 2007. TERRY GODDARD ATTORNEY GENERAL s/Paul E. Carter PAUL E. CARTER Assistant Attorney General Attorneys for State Defendants

Copy of the foregoing mailed this 1st day of February, 2007, to: Barry N. Patterson, # 117045 ASPC-Eyman-Meadows Unit P.O. Box 3300 Florence, AZ 85232-3300 s/mm
IDS04-0498/ G2004-21306/ 987125

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