United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
Plaintiff Timothy Olmos filed this civil rights action under 42 U.S.C. § 1983 against various officials of the Arizona Department of Corrections (ADC). (Doc. 21.) Plaintiff moved for partial summary judgment, and the remaining Defendants-Director Ryan and Allen Ortega-cross-moved for summary judgment on all remaining claims. (Docs. 116, 163.) The Court denied Plaintiff's motions and granted Defendants' motion for summary judgment in part, denied it in part, and dismissed Ortega. (Doc. 208.) Specifically, the Court denied summary judgment to both parties on Plaintiff's claim for alleged underpayment as a kitchen worker and alleged improper charges for "chronic care" visits for allergies. ( Id. )
The parties have now filed second cross motions for summary judgment on both remaining claims. (Docs. 214, 219.) Defendant Ryan submits his motion (Doc. 214), his Statement of Facts (Doc. 215 (DSOF)), and the declaration of Angelo Daniels, Correctional Administrator II of ADC's Offender Operations Division, with attachments ( id., Ex. A, Daniels Decl.). Plaintiff submits his Response/Cross-motion (Doc. 219) and a Statement of Facts (Doc. 220 (PSOF)) and exhibits.
The Court will grant Defendant summary judgment on the remaining claims and deny summary judgment to Plaintiff.
I. Count VII-Charges for Allergy Treatment and Care
The Court will dismiss this claim without prejudice on the ground that Plaintiff failed to exhaust his administrative remedies.
In Count VII of his First Amended Complaint, Plaintiff alleges due process violations based on allegedly improper charges for a laundry list of items, including chronic care treatment. (Doc. 21, count VII at 5E.) In his first motion for summary judgment, Plaintiff relied on several statutes, including Ariz. Rev. Stat. § 31-201.01 (I), which provides that the ADC director is to exempt certain inmates or medical visits by inmates from payment of medical and health services fees and fees for prescriptions, medication or prosthetic devices, including "inmates who are undergoing follow-up medical treatment for chronic diseases." Plaintiff claims that under ADC policies, he was improperly charged for chronic care visits and medications for allergies, as well as a number of other medical conditions. The Court previously denied Defendant's Motion for Summary Judgment insofar as Plaintiff may have been charged for allergy visits and medications and granted it as to all other matters raised in Count VII. (Doc. 208 at 15.) The Court also denied Plaintiff's motion as to all matters, including charges regarding allergies because he did not submit proof of such charges. ( Id. )
In his present motion, Defendant argues that (1) Plaintiff did not exhaust his administrative remedies as to any claim regarding improper charges for his allergy condition, (2) under DO 1100, respiratory diseases refer to conditions such as asthma or emphysema, not seasonal allergies, which are typically intermittent and do not require regular check-ups and do not normally qualify as chronic conditions unless they are in combination with other conditions, and (3) Plaintiff had a meaningful post-deprivation remedy through the prison grievance procedure. (Doc. 14.) Plaintiff responds to these arguments and submits charts allegedly showing money charged for allergy medications or treatment. (Doc. 219, Ex. A, Pl. Decl.)
Under the Prison Litigation Reform Act (PLRA), a prisoner must exhaust available administrative remedies before bringing a federal action concerning prison conditions. 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). And 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). 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. Id. 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).
Defendant argues that Plaintiff did not exhaust his remedies in grievance A02-056-010 regarding charges for treatment or medication for allergies. (Doc. 214 at 3-4.) The Court previously addressed exhaustion of administrative remedies in Defendants' Motion to Dismiss. (Doc. 152.) The Court specifically found in examining grievance number A02-056-010 that Plaintiff failed to exhaust administrative remedies for certain claims in Count VII-authority to charge for renewal of diabetic diet, rate of pay, and missed special diet meals. ( Id. at ...