United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
April 25, 2016, the Court denied Defendants’ motion for
summary judgment on the issue of whether Plaintiff Eulandas
J. Flowers failed to exhaust his available administrative
remedies in accordance with the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a) (2012) (the “PLRA”).
(Doc. 109). The Court thereafter set for trial the issue of
exhaustion, (Doc. 116), which was held on June 16, 17, and
August 2, 2016. The Court hereby finds and concludes the
the PLRA, a prisoner must exhaust “available”
administrative remedies before filing an action in federal
court. See 42 U.S.C. § 1997e(a); Vaden v.
Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006);
Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir.
2005). The 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
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).
defendant bears the initial burden to show that there was an
available administrative remedy and that the prisoner did not
exhaust it. Albino v. Baca, 747 F.3d 1162, 1169,
1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37
(a defendant must demonstrate that applicable relief remained
available in the grievance process). Once that showing is
made, the burden shifts to the prisoner, who must either
demonstrate that he, in fact, exhausted administrative
remedies or “come forward with evidence showing that
there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him.” Albino, 747
F.3d at 1172. The ultimate burden, however, rests with the
Findings of Fact
to setting forth the findings of fact, the Court must
reiterate exactly what the disputed issues of material fact
were that necessitated a bench trial on the issue of
exhaustion: (1) “whether Sergeant [(now Lieutenant)
Jason] Johnson told Plaintiff that he could orally file an
emergency grievance via videotape while Plaintiff was on
defecation watch”; (2) “whether Plaintiff relied
on that alleged assertion to believe that he was properly
exhausting and did not need to follow the general grievance
process”; and (3) “whether Plaintiff made such a
recording of his grievances relating to his claims of assault
and denial of medical care and necessities.” (Doc. 109
at 14 n.5). The Court will restrict its findings and
conclusions to the disputed factual issues previously
identified as material.
Arizona Department of Corrections (“ADOC”)
provides a grievance procedure to all incarcerated inmates,
including Plaintiff. This procedure permits inmates to bring
to the attention of ADOC problems or complaints so that they
may be investigated, substantiated, and resolved. The first
step in resolving a complaint is, within ten workdays of the
action which caused the complaint, for the inmate to discuss
the issue with staff in the area most responsible for the
complaint or through submission of an Informal Complaint
Resolution Form. (DO 802.02, Id. at 5-6). If an
inmate is unable to informally resolve the complaint, the
inmate must submit the Informal Complaint Resolution form to
the CO III in their unit; a response must be provided in 15
days. (Id.). If the inmate is dissatisfied with the
response, he may submit a formal grievance. (Id. at
non-medical claims, the inmate may file a formal grievance
within five workdays from the receipt of the response to the
Grievance Coordinator. (DO 802.03, Id. at 6). Within
15 workdays, the Deputy Warden shall issue a written response
to the inmate. (Id.). Within 5 workdays, the inmate
may appeal the decision to the Warden. (DO 802.04,
Id. at 6-7). Within 20 workdays, the Warden shall
issue a written response. (Id. at 7.). Within 5
workdays from the Warden’s response, the inmate may
appeal to the Director. (DO 802.05, Id. at 7). The
decision of the Director is final and constitutes exhaustion
of all remedies within the Department. (Id.).
medical grievances, the inmate may file a formal grievance if
unable to resolve the complaint informally within five
workdays from the response to the informal grievance. (DO
802.06, Id. at 7). Within fifteen workdays, the
Facility Health Administrator must prepare a response to the
grievance. (Id.). Within five workdays from the
response, the inmate may appeal to the Director. (DO 802.07,
Id. at 8). The decision of the Director is final and
constitutes exhaustion of all remedies within the Department.
(Id. at 9).
least March 26, 2014, through April 21, 2014, Plaintiff was
housed in the Kaibab Unit at ASPC-Winslow. On March 26, 2014,
Plaintiff was assigned to defecation watch upon suspicion of
possessing contraband. While on defecation watch, inmates are
allowed no personal property and are required to eliminate in
a container, rather than a toilet, so that whatever
contraband they pass may be retrieved by staff. On April 5,
2014, Plaintiff was released from defecation watch and
returned to regular maximum custody detention status. In
maximum custody, inmates have access upon request to writing
materials, golf style pencils, and standard forms, including
inmate letters, informal resolutions, and inmate grievances.
in the ADOC regulations does it state that an individual may
file an informal or formal grievance by utilizing a video
camera or a prison facility’s closed circuit camera
Analysis and Conclusions of Law
previously noted, the burden lies with Defendants to
establish that Plaintiff failed to exhaust available
administrative remedies prior to filing suit in federal
court. Albino, 747 F.3d at 1172. Plaintiff argument,
as evinced from his testimony at the bench trial, is that
Sgt. Johnson informed him that while he was on defecation
watch, he could file a grievance by speaking into a video
camera that had been installed in front of his cell window.
Thus, Plaintiff contends, he was led to reasonably believe
that he could comply with ADOC ...