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

1 2 3 4 5 6 7 8 9 10 11 12 State of Arizona, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Kristofer M. Seneca, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1350-PHX-SRB ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NOT FOR PUBLICATION

LMH

This Order addresses the remaining claims in this state prisoner's civil rights action about religious exercise. Because Plaintiff failed to exhaust his administrative remedies before filing suit on his remaining claim, the Court will grant Defendants' Motion for Summary Judgment on Remaining Count II Issues (Doc. 123), deny Plaintiff's Motion to Strike (Doc. 133), and dismiss this action. I. Background Plaintiff's action challenged policies of the Arizona Department of Corrections regarding his right of religious exercise. Through prior orders, Plaintiff's claims were reduced to one count ­ Count II ­ that alleged three separate violations of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). Previously, the Court found that one part of Count II ­ a challenge to the restriction on the number of religious items an inmate may possess ­ was rendered moot (Doc. 119). The remaining two parts of Count Two pertained to a requirement that certain religious items could only be obtained through the
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prison store and not through donation. In the course of litigation, these claims had "fallen through the cracks," so the Court allowed additional time for summary judgment motions to be filed (Doc. 119 at 5-7.) Not surprisingly, Defendants moved for summary judgment on the remaining Count II issues (Doc. 123). They contend that this claim must be dismissed because Plaintiff did not exhaust it before he filed this action in 2003. Defendants assert that at a pretrial conference in July 2005, the Court advised Plaintiff to exhaust this remaining claim if he had not done so (Statement of Facts, ¶ 8, Doc. 124.) They submit the affidavit of Corrections Officer III E. Sauceda, a grievance coordinator at the Meadows Unit, who describes how Plaintiff began to grieve his claim in 2005 (Sauceda Aff., ¶ 3-10, Attach. A. to Statement of Facts, Doc. 124). Plaintiff moved to strike the summary judgment motion and responded that: (1) Defendant's assertion of the exhaustion defense is untimely; (2) Defendants cannot raise exhaustion in a motion for summary judgment; and (3) Defendants waived the defense by not including it in their original motion to dismiss (Doc. 133). Plaintiff asserts that his claim was exhausted in a grievance filed in 2003 before he brought this action, that he properly filled out the grievance form and if more information was needed, he could have been contacted for a telephone interview. Plaintiff asserts that at the July 2005 pretrial conference, he represented that he had exhausted his claims but he was told to go ahead and exhaust again "just in case" (Resp. at 11, Doc. 133). Defendants reply includes a contention that they preserved their exhaustion argument in their answer (Doc. 135). Plaintiff filed a reply to support his motion to strike, contending that under Rule 12(g), the exhaustion defense was waived because it was not raised in Defendant's earlier motion to dismiss (Doc. 137). Because the exhaustion issue is dispositive, the Court will not discuss the parties' contentions regarding the merits.

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II. Exhaustion A. General Standard Plaintiff must first exhaust available administrative remedies before bringing this action. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, No. 05-15650, 2006 WL 1529029, at *2 (9th Cir. June 6, 2006); Roles v. Maddox, 439 F.3d 1016, 1017 (9th Cir. 2006). Exhaustion is required regarding all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). The prison's administrative scheme must be "available" to the prisoner. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). The prisoners "are obligated to navigate all a prison's administrative review process" and some type of relief must remain possible. Id. at 935. To be "properly exhausted," the prisoner must follow the prison's procedural rules. Ngo v. Woodford, No. 05-416, 2006 WL 1698937, at *7-*12 (U.S., June 22, 2006). Defendants bear the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. Further, a court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). B. Raising Exhaustion in a Motion for Summary Judgment Plaintiff contends that exhaustion is properly considered under an unenumerated motion to dismiss under Rule 12(b), so Defendants cannot raise it in a summary judgment pursuant to Rule 56. This contention has no merit. Exhaustion is a matter in abatement that is "closely analogous" to a motion for summary judgment. Wyatt, 315 F.3d at 1120 n.14. The differences are that summary judgment is on the merits but exhaustion is not, and summary judgment does not permit the court to resolve disputed issues but exhaustion requires it. Id. at 1119-20 n.14. The
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important question, however, is not whether these analytical frameworks are identical but whether a pro se plaintiff had notice of his opportunity to develop a record on the exhaustion issue. Id. Plaintiff has not contended that he lacked such an opportunity, and the record would belie such an assertion. This case is at a stage in the proceedings where most of the issues are resolved, and discovery has already taken place. Plaintiff was issued a warning about his responsibility to respond to Defendants' motion (Doc. #126). His response shows that he understood this requirement. Defendants cannot be faulted for raising exhaustion in a summary judgment motion because the Court invited this type of motion, in part because the Court also anticipated that there would be arguments on the merits that would be appropriately raised on summary judgment. The Ninth Circuit has held that if an exhaustion issue is raised in a motion for summary judgment, the court should treat it as an unenumerated motion under Rule 12(b). Ritza, 837 F.2d at 368-69. Accordingly, the Court will treat Defendants' motion as if it had been raised under unenumerated Rule 12(b) to dismiss for lack of exhaustion. C. Waiver Plaintiff also contends that Defendants waived the defense of exhaustion by failing to raise it in an earlier unenumerated Rule 12(b) motion to dismiss. Defendants replied that the affirmative defense was preserved in their answer (Doc. 22, ¶ 9). The Court agrees that the defense was not waived. Plaintiff claims that under Rule 12(g) bars the defense because Defendants did not raise it in an earlier motion to dismiss. It is true that Rule 12(g) provides for waiver of certain defense that are not included in a motion under Rule 12. Rule 12(b), however, provides that every defense must be asserted in the responsive pleading, except that at the option of the pleader, certain defenses may be submitted by motion. Thus, raising the defense in the answer, as Defendants did, is sufficient to preserve it. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agnecy, 216 F.3d 764, 788 (9th Cir. 2000); Phillips v. Baker, 121 F.2d 752 (9th Cir. 1941). Also, even though the exhaustion
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defense is the type that may be waived or forfeited, once it is raised, the Court cannot bypass it and instead rule on the merits. Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). Consequently, Plaintiff's motion to strike will be denied. D. Plaintiff's 2003 Grievances As stated, Plaintiff's remaining claim concerns his ability to obtain religious items through a donated source instead of the prison store. Plaintiff asserts that he exhausted his claim pre-suit, in Grievance A16-113-003 filed in May 2003. He asserts this was proven in his earlier Motion for Summary Judgment, Statement of Facts, Exhibit 3 at 3, Doc. 28 (Doc. 133 at 11-12). It is unclear exactly what Plaintiff means, because the Statement of Facts has no exhibits attached to it, so there are no copies of the grievances Plaintiff claims to have filed (Doc. 28). And, Plaintiff's Statement of Facts describing his grievances do not describe a claim regarding purchasing religious items only from the prison store. Instead, Plaintiff identified grievances describing other claims, including a general claim that he was denied free exercise of his religion (Statement of Facts, ¶¶ 5-8, 11-14). This was not sufficient to constitute exhaustion. An inmate's grievance does not need to "allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory." Burton v. Jones, 32 F.3d 569, 575 (6th Cir. 2003). The grievance must instead give the officials fair notice of the alleged mistreatment or misconduct that forms the basis of the constitutional claim made in the complaint. Id.; accord Johnson v. Johnson, 385 F.3d 503, 516-17 (5th Cir. 2004). This fulfills the principal purpose of the exhaustion requirement, which is to allow jail officials "time and opportunity to address complaints internally before allowing initiation of a federal case." Brown, 422 F.3d at 936 (quoting Porter, 534 U.S. at 525). Plaintiff's failure to specifically describe his claim in his 2003 grievances did not give prison officials the opportunity to address his complaint. His general reference to his right of free exercise was too ambiguous to put the prison officials on notice that he was concerned about the requirement of acquiring religious items solely from the prison store.

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Although Plaintiff also contends that Defendants could have had a telephone interview with him to investigate, it is not the obligation of the Defendants to discover new claims. Accordingly, the Court finds that the remaining parts of Count II were not properly exhaustion in Plaintiff's 2003 pre-suit grievances. E. Plaintiff's 2005 Grievances Defendants contend that Plaintiff filed grievances after a pretrial conference tipping him off that he needed to exhaust this remaining claim. (Sauceda Aff., ¶¶ 4-11, Doc. 124, Attach. A.) Even assuming that the issue was properly grieved in 2005, the exhaustion requirement cannot be satisfied during the pendency of this lawsuit. Section 1997e(a) provides that "[n]o action shall be brought" before exhaustion is satisfied. In Vaden v. Summerhill, 2006 WL 1529029, at *3 (9th Cir. June , 2006), the Ninth Circuit found that permitting exhaustion while an action is pending will undermine the Congressional objectives in requiring exhaustion before an action is brought. These objectives include affording corrections officials time and opportunity to address complaints internally before the initiation of a federal case and possibly obviating the need for litigation. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per curiam). "The bottom line is that the prisoner must pursue the administrative process as the first and primary forum for redress of grievances." Vaden, 2006 WL 1529029, at *3. Thus, dismissal is mandated even if exhaustion occurred during the pendency of a lawsuit. Id. (citing McKinney, 311 F.3d at 1200-01). The Court therefore is compelled to dismiss the remaining parts of Count II for lack of exhaustion. IT IS ORDERED: (1) Defendants' Motion for Summary Judgment (Doc. 123), construed in part as a motion to dismiss for lack of exhaustion, is granted. The remaining claims in Count II of Plaintiff's Complaint are dismissed without prejudice for lack of exhaustion. (2) Plaintiff's Motion to Strike (Doc. #133) is denied.

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(3) All claims have now been resolved. Accordingly, the Clerk of Court shall enter a judgment of dismissal.

DATED this 6th day of July, 2006.

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