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Gill v. Ferguson

United States District Court, D. Arizona

June 11, 2014

Arrington Miles Gill, Plaintiff,
John D. Ferguson, et al., Defendants.


FREDERICK J. MARTONE, Sr., District Judge.

Plaintiff Arrington Miles Gill, an inmate at the La Palma Correctional Center in Eloy, Arizona, brought this pro se civil rights action under 42 U.S.C. § 1983 against Ross Forrest, a correctional officer employed by Corrections Corporation of America. Before the court is defendant Forrest's Motion to Dismiss for failure to exhaust administrative remedies (doc. 27), plaintiff's response (doc. 32), and defendant's reply (doc. 34).

I. Notice

In his Second Amended Complaint, plaintiff alleges that defendant acted with deliberate indifference to his safety in violation of the Eighth Amendment when defendant failed to properly place him in a seatbelt and then drove recklessly causing injuries (doc. 22). Defendant now moves to dismiss the Second Amended Complaint on the ground that plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA").

Until recently, the Ninth Circuit held that a challenge to a prisoner's failure to exhaust under § 1997e(a) should be raised by a defendant as an "unenumerated Rule 12(b) motion." Wyatt v. Terhune , 315 F.3d 1108 (9th Cir. 2003). Accordingly, defendant quite reasonably filed the pending motion as an unenumerated Rule 12(b) motion (doc. 27 at 3). We then issued a Notice to Gill informing him of his obligation to respond to the motion to dismiss and the consequences if the motion is granted (doc. 28, citing Wyatt , 315 F.3d 1108).

As noted in defendant's Reply at 1 n.1, the Ninth Circuit recently held that the failure to exhaust defense must instead be raised by a motion for summary judgment. It is no longer considered a matter of abatement to be raised in an unenumerated Rule 12(b) motion. Albino v. Baca , 747 F.3d 1162, 1166 (9th Cir. 2014), overruling Wyatt , 315 F.3d at 1119-20. We are therefore presented with a preliminary issue of whether plaintiff received sufficient notice of the requirements and effects of defendant's current motion.

In Rand v. Rowland , 154 F.3d 952 (9th Cir. 1998), the Ninth Circuit held that a pro se prisoner is entitled to fair notice of the requirements needed to defeat a defendant's motion for summary judgment. Because of the "unique handicaps of incarceration, " affirmative notice is required to ensure that "a prisoner's access to the courts is adequate, effective, and meaningful." Id. at 958 (citation omitted). Rand described in detail the necessary elements of the requisite written notice. A prisoner must be informed "in ordinary, understandable language" (1) of his rights and obligations under Rule 56; (2) of his right to file counter-affidavits or other responsive evidentiary materials, (3) that failure to file responsive evidentiary materials may result in the moving party's evidence being taken as true and final judgment entered against him; (4) that losing on summary judgment will end the case without a trial; and (4) of any local rules providing additional requirements. Id. at 960-61.

In Wyatt, the Ninth Circuit extended the Rand notice requirements to what the court described as an "unenumerated Rule 12(b) motion" to dismiss for failure to exhaust administrative remedies. 315 F.3d at 1119. The court recognized that the unenumerated Rule 12(b) procedure for "look[ing] beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust" is "a procedure closely analogous to summary judgment." Id. at 1120 n.14. The court required a Rand notice in order to "assure that [the prisoner] has fair notice of his opportunity to develop a record." Id .; Woods, II v. Carey , 684 F.3d 934, 938 (9th Cir. 2012).

The Notice given to plaintiff in this case advises him that defendant has filed a motion to dismiss, that plaintiff must timely respond to all motions, that failure to respond could be treated as a consent to the granting of the motion, that if the motion is granted, the case will end. (Doc. 28). The Notice further provides that because the motion to dismiss seeks dismissal of the Complaint for failure to exhaust administrative remedies, the Court may consider sworn declarations or other admissible documentary evidence beyond the Complaint, and that if defendant produces admissible evidence demonstrating a failure to exhaust, plaintiff must "produce copies of your grievances and grievance appeals or other admissible evidence sufficient to show that you did exhaust all available administrative remedies." Id. at 2. This Notice satisfies each of the Rand requirements.[1]

The Albino case does not substantively alter the Rand/Wyatt notice requirements. Indeed, the Albino court recognized that "it may be more a matter of a change of nomenclature than of practical operation." Albino , 747 F.3d at 1166. Accordingly, we conclude that, notwithstanding the intervening case law, plaintiff has received sufficient notice of the opportunity to develop a record and the requirements needed to defeat the defendant's motion. It would be a triumph of form over substance to delay the litigation or increase the parties' costs by requiring a second round of notice and memoranda with no attendant benefit.

II. Exhaustion

Proper exhaustion of available administrative remedies is mandatory under the PLRA. Woodford v. Ngo , 548 U.S. 81, 85, 126 S.Ct. 2378, 2382 (2006). Proper exhaustion requires that prisoners "complete the administrative review process in accordance with the applicable procedural rules, " id. at 88, 126 S.Ct. at 2384, that are defined not by the PLRA, but by the prison grievance process itself, Jones v. Bock , 549 U.S. 199, 218, 127 S.Ct. 910, 922 (2007). "Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to properly exhaust.'" Id. at 218, 127 S.Ct. at 922-23. "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id. at 218, 127 S.Ct. at 923.

Plaintiff is a California Department of Corrections and Rehabilitation ("CDCR") inmate currently incarcerated at the La Palma Correctional Center ("LPCC") in Eloy, Arizona. The administrative grievance process for all CDCR inmates is set forth in Cal. Code Regs. tit. 15, § 3084, MTD Ex. 1, ex. A, and further defined by Contract Beds Unit (CBU) Operating Procedure # 510, id. at ex. B.[2] Depending on the nature of the grievance, an inmate must first submit his complaint on either a CDCR Form 602 (Appeal Form), or CDCR Form 602-HC (Health Care Appeal Form).

There are three levels of review for both healthcare and non-healthcare appeals. The initial form must be submitted within 30 days of the occurrence of the event. If the first level appeal is denied or otherwise not resolved to the inmate's satisfaction, a second level appeal can be filed. If the second level appeal is not resolved to the inmate's satisfaction, he may file a third level appeal. If an inmate fails to follow the appeals procedure outlined in § 3084, or omits any part of the process, he has not exhausted the administrative remedies available to him. Cal. Code Regs. tit. 15, § 3084.1. An appeal may be ...

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