Opinion
3:21-cv-01398-MK
01-11-2023
RAFAEL G. ALCON-AYALA, Plaintiff, v. DEP. JACKSON, Defendant.
FINDINGS AND RECOMMENDATION
KASUBHAI, MAGISTRATE JUDGE.
Plaintiff, an adult in custody (“AIC”), filed this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant Deputy Jackson used excessive force against him in violation of his Fourth Amendment rights. Defendant has filed a Motion for Summary Judgment asserting the affirmative defense that plaintiff failed to exhaust administrative remedies under the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. ¶ 1997e(a). Mot., ECF 23. Because defendant has met his burden on this affirmative defense, his motion for summary judgment, ECF 23, should be GRANTED.
BACKGROUND
This action arises out of an incident that occurred on June 3, 2021, between plaintiff and defendant. Defendant submitted a video of the incident and a Multnomah County Sheriff's Office (“MCSO”) report of the incident. See Pedro Decl. Exs. 5-6. Plaintiff filed a verified complaint, which means it was filed with a sworn statement declaring, under penalty of perjury, the allegations are true and correct in accordance with 28 U.S.C. § 1746. See Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (defining a verified complaint). As such, the Court may treat the complaint as an affidavit opposing defendant's motion for summary judgment. See id. (noting, “[a] verified complaint may be used as an opposing affidavit under Rule 56”); see also, Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (same).
Based on the record before the Court, the following is undisputed: On June 3, 2021, defendant was escorting plaintiff to the transfer area of MCDC for a court appearance. Id., Ex. 6 at 24. Defendant and plaintiff paused in a hallway to communicate about a pen plaintiff was carrying that had been wrapped in tape. Id. Defendant allowed plaintiff to keep the pen if he removed the tape that had altered it and had made it contraband. Id. Plaintiff removed the tape and threw it on the floor. Id. When defendant ordered plaintiff to pick up the tape, plaintiff partially complied but left some of it on the floor. Id. Defendant gave plaintiff several orders to pick it up, but plaintiff did not comply. Id. Defendant attempted to grab plaintiff's wrist but plaintiff turned away, kept his body tense, and did not release his arms or hands. Id. Defendant took plaintiff to the floor by wrapping his arms around plaintiff's torso, lifting him off his feet, and using downward momentum to put plaintiff on the floor where he landed on his hands and knees. Id. Deputy Wood witnessed the incident and called for backup. Id. Deputy McAbery responded and, along with defendant, used downward pressure to roll plaintiff onto his stomach, apply a cross-leg restraint, and apply handcuffs. Id. Deputies lifted plaintiff to his feet, escorted him to disciplinary housing, performed a strip search of him, and kept him in the segregated unit. Id.
Shortly after the incident, plaintiff was seen and assessed by medical staff. Id. Defendants contend plaintiff was “cleared” of injury by medical staff. Id. Plaintiff alleges that defendant's actions caused him “pain and suffering and physical injury and emotional distress.” Compl. 3, ECF 2.
On June 4, 2021, the next day, plaintiff submitted a grievance regarding the incident that stated:
On 6-3-21 approximately 0500-0600 hours Deputy Jackson #52712 used unlawful force against me. Jackson unjustifiably used physical force by roughing me up, grabbing my arm, squeezing it, throwing me against the wall and later on slamming me onto the ground. By his mishandling of the situation, he provoked and caused me to fear for my well being and caused me emotional distress. His misuse of excessive force is my proof that leads me to believe he is not mentally stable and that he acted out of anger and spite towards me. When backup arrived I saw Deputy McAberry and asked for help which he did not give me, he instead assisted him in causing me physical injury.Reply, Ex. A at 1, ECF 31-1. Plaintiff's grievance was received and resolved by Deputy Devaney who returned the grievance to plaintiff on June 16, 2020, stating as follows on the grievance form:
Per MSCO internal investigation: the use of force in your grievance was investigated and concluded that staff followed policy. Grievance closed.Id. It is undisputed that plaintiff did not appeal this grievance.
Based on the incident described in plaintiff's grievance, he now asserts a claim of excessive force against defendant. Compl. 3, ECF 2. Defendant argues that he is entitled to summary judgment under the PLRA because plaintiff did not exhaust the administrative remedies “available” to him at MCDC. Mot. 2, ECF 23. The Court agrees.
LEGAL STANDARDS
I. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former FED. R. CIV. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm 'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. PLRA Exhaustion Standards
Under the Prison Litigation Reform Act (PLRA), AICs must exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a[n] [AIC] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies to all [AIC] suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”).
Exhaustion is mandatory under the PLRA and “is no longer left to the discretion of the district court.” Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006). Before filing a § 1983 complaint, an AIC must exhaust all available grievance remedies including appealing grievance decisions to the highest level. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017) (citations omitted). “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.'” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original); Ross v. Blake, 578 U.S. 632, 648 (2016) (“an [AIC] need exhaust only such administrative remedies as are ‘available'”). “To be available, a remedy must be available as a practical matter; it must be capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (internal quotation marks omitted). In Ross, the Supreme Court enumerated three “circumstances” in which an administrative “remedy” is, as a practical matter, unavailable: “(1) when the process operates as a ‘simple dead end' with no actual possibility of relief to [AIC]s; (2) when the process is so opaque or confusing that it is ‘essentially unknowable-so that no ordinary [AIC] can make sense of what it demands'; and (3) when prison officials thwart [AICs] from using the process through machination, misrepresentation, or intimidation.” Crum v. Beal, No. 6:16-CV-00600-HZ, 2017 WL 1946314, at *3 (D. Or. May 8, 2017), aff'd, 749 Fed.Appx. 629 (9th Cir. 2019) (citing Ross, 578 U.S. at 643-44).
Exhaustion is an affirmative defense “that must be pled and proved by a defendant.” Albino, 747 F.3d at 1168. In Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), the Ninth Circuit articulated a framework for determining whether an adult in custody exhausted available administrative remedies. First, a defendant must “prove that there was an available administrative remedy and that the [AIC] did not exhaust that available remedy.” Id. at 1191 (citation omitted). “This burden is achieved by producing testimony from jail deputies that describe the jail's grievance procedure and provide an overview of the jail's record-keeping system.” Williams v. Gore, No. 15-CV-654, 2017 WL 1354695, at *5 (S.D. Cal. Mar. 24, 2017) (citing Morton v. Hall, 599 F.3d 942, 944 (9th Cir. 2010)). Next, “the burden shifts to the plaintiff, who must prove that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'” Williams, 775 F.3d at 1191 (quoting Albino, 747 F.3d at 1172); Provencio v. Parker, No. 2:20-CV-01007-YY, 2021 WL 3122405, at *4 (D. Or. Apr. 12, 2021), report and recommendation adopted, 2021 WL 3115815 (D. Or. July 20, 2021) (“[affirmative acts by prison officials that disrupt or prevent the exhaustion of administrative remedies may make those remedies effectively unavailable”). While plaintiffs must meet their burden of proof, “[t]he ultimate burden of proof . . . remains with the defendant.” Williams, 775 F.3d at 1191 (quoting Albino, 747 F.3d at 1172).
A motion for summary judgment is the proper means to raise an AIC's failure to exhaust administrative remedies. Albino, 747 F.3d at 1166. “If undisputed evidence viewed in the light most favorable to the [AIC] shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the fact.” Id.
DISCUSSION
I. Available Administrative Remedy
To satisfy his initial burden to show there was an administrative remedy, defendant submitted the declaration of Brandon Pedro, an MCSO Sergeant who is responsible for searching for and retrieving records and data related to AIC who are being held in MCDC. See Pedro Decl. ¶ 3, ECF 24. Attached to Sergeant Pedro's declaration are sections of the MCDC Inmate Manual and Corrections Manual relating to grievances that were “applicable at the time of the incident.” See id. Exs. 1-2.
The MCDC Inmate Manual states that a grievance must be submitted within five days of an incident and must include specific information including, location, dates, times, “and names of staff or inmates who were involved or present, if known.” Id. Ex. 1 at 2, ECF 24. Regarding exhaustion, the manual instructs AICs, “[y]our grievance about an issue will not be considered fully exhausted unless you have properly and timely filed an appeal at every available grievance level.” Id. at 3. Regarding appeals, the Inmate Manual provides:
If you are not satisfied with the resolution of your grievance you may submit it to the next supervisory level by submitting a new grievance form with 5 days of receiving the response. The new grievance form must include the original grievance date, the name of the staff member you submitted it to, the name of the staff member who resolved the grievance, and the DB# (located in the upper right hand corner of the original grievance. Id. The Inmate Manual further instructs AICs, “[y]ou may appeal a grievance twice,” and, “[y]ou may not appeal a dismissed grievance or a dismissed appeal.” Id. The first appeal is reviewed by the supervisor of the staff member who answered the grievance, and the second appeal is reviewed by the Final Appeal Committee. Pl.'s Reply to Mot. Ex. B. at 2, ECF 31-1.
The Inmate Manual and defendant's exhibits make it clear MCDC did not dismiss plaintiff's grievance, and the evidence shows he was “entitled to an appeal consistent with the grieving process.” Devaney Decl. 2, ECF 35. Defendant has therefore satisfied his initial burden to demonstrate “there was an available administrative remedy and the [AIC] did not exhaust that available remedy.” Williams, 775 F.3d at 1191.
II. Whether the Administrative Remedy Was Effectively Unavailable
Because defendant has shown plaintiff failed to exhaust available remedies, the question is whether plaintiff can “prove that there is something particular about his case that made the existing and generally available administrative remedies effectively unavailable to him[.]” Williams, 775 F.3d at 1191. Plaintiff argues he failed to appeal his grievance because he thought the words “grievance closed” meant that his grievance had been “dismissed” and the Inmate Manual does not permit an AIC to “appeal a dismissed grievance or a dismissed appeal.” Pl.'s Reply at 3, ECF 31. Put differently, plaintiff argues he “did fully exhaust his administrative remedies as far as he could go since the grievance was closed and therefore not appealable.” Id. at 4. Plaintiff argues further that, “[b]y marking the grievance ‘closed' and not explaining that the grievance was still appealable, the prison officials deceived and prevented plaintiff from appealing the grievance.” Pl.'s Second Resp. 14, ECF 36.
Plaintiff's mistaken belief that he could not appeal a grievance marked “closed” does not excuse his failure to exhaust. See Crum, 2017 WL 1946314 (D. Or. May 8, 2017), at *5 (holding, “plaintiff's misinterpretation of the regulation is insufficient to prove that a regulation is so ‘opaque' that, in a practical sense, it is unavailable”). In Crum, the plaintiff argued that the difference between the terms, “rejection” and “restriction” in the applicable regulations “was so confusing that the grievance remedy was ‘opaque.'” Id. at *4. This court noted, in turn, that the terms do not have the same meaning and pointed out that the grievance regulations did not use the terms interchangeably. Id. Thus, this court held, “there is no confusion created by the regulations when they are considered together.” Id. at *5.
Here, plaintiff argues that he not aware “until recently” that an AIC “could appeal a ‘closed' grievance.” Acon-Ayala Decl. 2, ECF 37. However, it is not clear why plaintiff assumed “closed” meant “dismissed” when the terms do not mean the same thing, and where the MCDC Inmate Manual clearly states that an AIC “may not appeal a dismissed grievance or a dismissed appeal.” Pl.'s Reply Ex. B, ECF 31-1 (emphasis added). Plaintiff argues that jail officials should have explained the difference between a “closed” and “dismissed” grievance, but defendant points out that plaintiff had filed other grievances and appeals and was not unfamiliar with the grievance process. Reply 3, ECF 32. Moreover, the handbook uses plain language to describe the availability of an appeal, explaining, “[i]f you are not satisfied with the resolution of your grievance you may submit it to the next supervisory level by submitting a new grievance form with 5 days of receiving the response.” Pedro Decl. Ex. 1 at 3, ECF 24. The grievance form itself directs AICs to that section of the handbook and provides a notification in bold font and all capital letters with arrows on either side stating, “PLEASE REFER TO THE INMATE MANUAL PAGE 10 FOR THE APPEAL PROCESS.” Pl.'s Reply Ex. A, ECF 31-1. Further, Deputy Duvaney explained in his declaration that nothing in the grievance process permits an officer to “prohibit an appeal without dismissing a grievance.” Id.
Given this undisputed evidence, and viewing it in the light most favorable to plaintiff, the Court finds plaintiff has not shown that “the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'” Williams, 775 F.3d at 1191. It is true “that a grievance process can be practically unavailable because it is ‘essentially unknowable' and prevents a[n] [AIC] from making sense of it.” Crum, 2017 WL 1946314, at *4 (citing Ross, 578 U.S. at 644). In this case, however, the MCDC handbook plainly states that two levels of appeal are available unless a grievance is dismissed, and plaintiff's grievance was clearly not dismissed. Thus, this is not a case in which the grievance appeal system rules were “so confusing . . . no reasonable [AIC] can use them.” Ross, 578 U.S. at 644. Moreover, plaintiff does not argue that anyone “misled [him] into failing to file a final appeal,” Provencio, 2021 WL 3122405, at *6, and there is no evidence plaintiff “took reasonable steps to exhaust but was prevented from doing so because of a mistake by prison officials.” Gomez v. Peters, No. 2:18-CV-01607-HZ, 2020 WL 7647470, at *4 (D. Or. Dec. 23, 2020). Thus, plaintiff's confusion regarding the appealability of a “closed” grievance does not excuse his failure to appeal his grievance and exhaust his remedies. See Jackson v. Climmer, No. 3:17-CV-01062-SB, 2017 WL 9249530, at *3 (D. Or. Nov. 22, 2017), report and recommendation adopted, 2018 WL 438926 (D. Or. Jan. 16, 2018) (“[plaintiff's mistaken belief that he could not file a grievance regarding food service does not excuse his failure to exhaust”) (citing Ross, 578 U.S. at 641).
III. Dismissal Without Prejudice
Because defendant has established there is no genuine issue of material fact as to whether plaintiff failed to fully exhaust available remedies, his claim must be dismissed. See Jones, 549 U.S. at 211 (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”) (citation omitted). Defendant is therefore entitled to summary judgment, and plaintiff's claim should be dismissed without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d 1162 (“If the district court concludes that the [AIC] has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.”).
CONCLUSION
Plaintiff failed to exhaust his administrative remedies as required by the PLRA, and defendant's Motion for Summary Judgment, ECF 23, should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of this recommendation to file specific written objections with the Court. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See FED. R. CIV. P. 72, 6. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).