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Lapointe v. Bienovidas

United States District Court, Ninth Circuit

July 9, 2013

Anthony Gregory LaPointe, Plaintiff,
v.
Sergeant Bienovidas et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Plaintiff Anthony Gregory LaPointe brought this civil rights action under 42 U.S.C. § 1983 against three Arizona Department of Corrections (ADC) employees: Sergeant Benavidez, [1] Sergeant Moreno, and Correctional Officer (CO) Reyes (Doc. 12). Before the Court is Defendants' Motion to Dismiss for failure to exhaust administrative remedies (Doc. 43), which Plaintiff opposes (Doc. 47).

The Court will deny Defendants' motion.

I. Background

Plaintiff's claim arose during his confinement at the Arizona State Prison Complex-Florence, Meadows Unit (Doc. 12 at 1, 3). In Count I of his First Amended Complaint, Plaintiff alleged that Benavidez threatened his safety in violation of the Eighth Amendment (id. at 3). Plaintiff claimed that on January 5, 2011, he was assaulted by other inmates, and while waiting for an ambulance, Benavidez told Plaintiff that he would place Plaintiff back on to the yard unless Plaintiff paid him $40 (id.). Plaintiff alleged that he was again placed back on to the yard, and on January 6 and 7, 2011, he was assaulted and stabbed by the same inmates (id.).

In Count II, Plaintiff alleged that Moreno violated Plaintiff's Eighth Amendment rights when he allowed inmates whom he knew had previously attacked Plaintiff back on to the yard (id. at 4).

And in Count IV, Plaintiff averred that Reyes violated Plaintiff's Eighth Amendment rights when he watched the attack on Plaintiff and failed to intervene (id. at 5A).[2]

Defendants now move to dismiss Plaintiff's claims on the ground that he failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. 43).

II. Exhaustion Legal Standard

Under the PLRA, a prisoner must exhaust available administrative remedies before bringing a federal action. See 42 U.S.C. § 1997e(a); Griffin v. Arpaio , 557 F.3d 1117, 1119 (9th Cir. 2009). Exhaustion is required for 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). A prisoner must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo , 548 U.S. 81, 92 (2006).

Exhaustion is an affirmative defense. Jones v. Bock , 549 U.S. 199, 212 (2007). Thus, the defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003). There can be no absence of exhaustion unless a defendant demonstrates that applicable relief remained available in the grievance process. Brown v. Valoff , 422 F.3d 926, 936-7 (9th Cir. 2005). 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. And when considering disputed issues of fact, a court has broad discretion as to the method used in resolving the dispute because "there is no right of jury trial" as to an issue arising in a pre-answer motion. Ritza v. Int'l Longshoremen's & Warehousemen's Union , 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted).

III. Parties' Contentions

A. Defendants' Motion

In support of their motion, Defendants submit the declaration of CO IV E. Sheridan, who was the Unit Grievance Coordinator at the Meadows Unit at the relevant time (Doc. 43, Ex. A, Sheridan Decl. ¶¶ 1-2). Sheridan states that the prison's grievance procedures are set forth in ADC Department Order (DO) 802, entitled "Inmate Grievance Procedure" (id. ¶ 7). Attached to Sheridan's declaration is the copy of DO 802 in effect when Plaintiff's claims arose and a copy of Director's Instruction (DI) 287, which amended portions of DO 802 (id., Attach. 1). Sheridan explains the steps in the inmate grievance procedure: (1) an inmate must try to resolve his complaint through informal means (id. ¶ 9, DO 802.02 § 1.1); (2) if not resolved, the inmate may file an informal complaint by Inmate Letter within 10 work days from the date of the action underlying the complaint (id., DO 802.02 § 1.2); (3) if not satisfied with the Inmate-Letter response, within 5 work days from that response, the inmate may file a Formal Grievance to the CO IV unit Grievance Coordinator (id., DO 802.02 § 1.4 & 802.03 § 1.1); (4) if not satisfied with the Deputy Warden's response to the Formal Grievance, within 5 work days from receipt of that response, the inmate may file an Inmate Grievance Appeal to the Warden (id., DO 802.02.04 § 1.1); and (5) if not satisfied with that response, within 5 work days of receipt of that response, the inmate may file an appeal to the ADC Director, whose response is final (id., DO 802.05 §§ 1.1-1.2, 1.8).

Sheridan avers that under DO 802, only one complaint per grievance is permitted; if an inmate includes multiple unrelated issues on a single form, the grievance is rejected and ...


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