G. MURRAY SNOW, District Judge.
Plaintiff Tommie Lee Henderson, Jr., brought this civil rights action under 42 U.S.C. § 1983 against Maricopa County Sheriff Joseph M. Arpaio (Doc. 14). Before the Court is Defendant's Motion to Dismiss for failure to exhaust administrative remedies (Doc. 19), to which Plaintiff did not respond.
The Court will grant Defendant's motion and terminate the action.
Plaintiff's claim arose during his confinement at the Maricopa County Fourth Avenue Jail (Doc. 14 at 1). In his Second Amended Complaint, Plaintiff alleged that his rights under the Americans with Disabilities Act (ADA) were violated when jail staff denied him assistance in obtaining his attorney's phone number (id. (Doc. 14 at 3-6)). Plaintiff averred that he suffers from memory problems as a result of a learning disability, diagnosed chemical imbalance, and a head injury. Plaintiff stated that upon his arrest, a police officer assisted Plaintiff in obtaining the phone number of his attorney and wrote it on a piece of paper. According to Plaintiff, when he was booked into the jail, his personal possessions, including the phone number, were confiscated. Plaintiff claimed that jail staff refused to assist him in obtaining the phone number and, consequently, he was excluded from using the phones, canteen, and mail because he could not call an outside party to set up the required pre-pay services. Plaintiff alleged that he was therefore denied participation in the jail's services because of his disability (id.).
Defendant now moves to dismiss the Second Amended Complaint on the grounds that (1) Plaintiff failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), and (2) he failed to state a claim under the ADA (Doc. 19).
II. Motion to Dismiss
In support of the exhaustion argument, Defendant submits the affidavit of Lourdes Hernandez, a Sergeant at the Maricopa County Sheriff's Office (MCSO) Bureau Hearing Unit (id., Ex. A, Hernandez Aff. ¶ 1). Hernandez states that the inmate grievance procedure is set forth in MCSO Policy DJ-3, which provides a three-tiered system: (1) the initial grievance and decision by the Bureau Hearing Officer; (2) the Institutional appeal; and (3) the External appeal (id. ¶¶ 3-4). Hernandez also states that inmates are notified of these grievance procedures when they receive a copy of the "MCSO Rules and Regulations for Inmates" and the grievance steps are set forth on the face of the inmate grievance form (id. ¶¶ 4-5).
Hernandez explains that under Policy DJ-3, an inmate must initiate a grievance within 48 hours of the event giving rise to the complaint (id. ¶ 8). She avers that she searched the grievance records maintained by MCSO for Plaintiff and found that he filed three grievances during his incarceration (id. ¶¶ 6-7). One grievance filed by Plaintiff related to his complaint that he was unable to make calls because a phone number given to him had been taken away (id., Attach. 4). This grievance, which is attached to Hernandez's affidavit, was submitted on May 8, 2012, and Plaintiff thereafter filed an Institutional appeal and indicated that he sought to forward his complaint to the External Referee (id. (Doc. 19-1 at 24-28)).
Defendant relies on this evidence to argue that Plaintiff failed to timely exhaust administrative remedies (Doc. 19 at 4). Defendant asserts that Plaintiff was booked into the jail on March 20, 2012, and that, according to his allegations, he claimed that his personal possessions, including the telephone number, were confiscated on that date (id.). Defendant contends that, under the MCSO grievance policy, Plaintiff was required to submit a grievance about this claim within 48 hours of March 20, 2012, but failed to do so (id.v). Defendant notes that in Sergeant Hadler's response to Plaintiff's grievance, he informed Plaintiff that the grievance was untimely and should not have been accepted (id., citing Ex. A, Attach. 4 (Doc. 19-1 at 26)).
Defendant also contends that Plaintiff failed to file an External grievance; therefore, he did not complete the administrative remedies and did not exhaust his complaint (id. at 6). For these reasons, Defendant requests that Plaintiff's claim be dismissed (id. at 6-7).
The Court issued the Notice required under Wyatt v. Terhune , 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003), which informed Plaintiff of his obligation to respond and the evidence necessary to successfully rebut Defendant's contentions (Doc. 21). Shortly thereafter, Plaintiff filed a Notice of Change of Address indicating his transfer to the Arizona Department of Corrections (Doc. 23). The Court therefore extended the time for Plaintiff to respond to Defendant's motion (Doc. 25). Plaintiff then filed a motion seeking a further extension of time to file his response (Doc. 27). The Court granted Plaintiff's motion and set a response deadline of July 8, 2013 (Doc. 28).
To date, Plaintiff has not filed ...