Opinion
No. CV-05-1842 PHX SMM (VAM).
May 15, 2006
ORDER
Before the Court is Defendant's motion to dismiss Plaintiff's complaint. (Doc. 10). For the reasons set forth below, the Court will deny the motion without prejudice.
Background
Plaintiff filed a pro se civil rights complaint on June 17, 2005, alleging Defendants violated his civil rights while Plaintiff was detained at the Maricopa County Durango Jail. (Doc. 1). On August 10, 2005, the Court ordered Defendant Arpaio to answer Plaintiff's allegation that Defendant violated Plaintiff's Eighth Amendment rights by subjecting him to overcrowded and unsanitary living conditions at the jail and by denying him adequate medical treatment. (Doc. 5). Defendant waived service and filed a motion to dismiss on October 19, 2005. (Doc. 8). Defendant asserts that the complaint must be dismissed pursuant to 42 U.S.C. § 1997e(a) because Plaintiff failed to fully exhaust his administrative remedies by pursuing his claims through the entire Maricopa County jail inmate grievance process prior to filing his § 1983 complaint. Id. Plaintiff filed a response to the motion to dismiss on November 21, 2005, stating that he did not exhaust administrative remedies with regard to two of his claims because he was prevented from doing so by jail officials. (Doc. 11). Plaintiff also asserts that his administrative grievance with regard to his other claim was pursued to the highest level available to him and that the claim was not resolved by the administrative procedure. Id. Defendant filed a reply to Plaintiff's response on November 23, 2005. (Doc. 12).
Discussion
Exhaustion of administrative remedies is governed by the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a). This statute provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2003 Supp. 2005). An inmate must exhaust available remedies "irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 532 (2002). To fully exhaust a section 1983 claim, a prisoner must pursue his grievance to the highest administrative level available to him. See Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999); Morgan v. Maricopa County, 259 F. Supp. 2d 985, 990-91 n. 13 (D. Ariz. 2003).
Exhaustion is an affirmative defense and Defendant has "the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. Id. "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the [C]ourt may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. If the Court concludes that Plaintiff "has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120.
The PLRA only requires that administrative remedies which are "available" to a prisoner be exhausted prior to bringing suit. 42 U.S.C. § 1997e(a) (2003 Supp. 2005). Because the statute requires the remedy to be "available" to the prisoner, it is possible for a prisoner to exhaust his administrative remedies without his claims being denied at the highest level of administrative review specified by the relevant inmate grievance policies. See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (holding that the district court erred by dismissing an inmate's § 1983 claim based on his failure to exhaust because the court did not consider the inmate's allegation that prison officials refused to provide him grievance forms). Federal courts have held that "a remedy that prison officials prevent a prisoner from `utilizing' is not an `available' remedy under § 1997e(a)[.]" Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (alteration omitted); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) ("The obligation to exhaust `available' remedies persists as long assome remedy remains `available.'") (emphasis in original).
In the motion to dismiss, Defendant contends that Plaintiff did not exhaust his administrative remedies because he did not file an external grievance appeal, i.e., an appeal of any adverse decision by the Maricopa County Sheriff's Office Hearing Officer, the final step in the grievance process, regarding any of the claims stated in his § 1983 action. (Doc. 11). Defendant acknowledges that Plaintiff filed several grievances regarding medical treatment. Id., Exh. 1. Defendant avers that inmate grievances are not ignored, and that inmates are not limited with regard to the issues they may grieve. Id., Exh. 1. Defendant produces inmate grievances regarding jail overcrowding and unsanitary living conditions which jail inmates pursued to the highest level of the grievance process, by pursuing an external grievance appeal. Id., Exh. 1, Attach. B.
In his complaint, Plaintiff asserts he was told the issues of unsanitary living conditions and jail overcrowding were not grievable issues, and that he pursued a grievance regarding his medical treatment claim as far as he was allowed. (Doc. 1). In response to Defendant's motion to dismiss, Plaintiff asserts he repeatedly asked for grievance forms to complain of the conditions at the jail and that he was denied grievance forms
because [the jail detention officers] claimed that my issues were in the process of being remedied in the form of the opening of the Lower Buckeye Jail and thus not grievable. When I did manage to obtain the paperwork, the officers simply refused to sign or accept it and this was an effective "roadblock" that I had no way around.
Furthermore, the Defendants motion claims that in Count II of my complaint I did file a grievance but failed to exhaust all administrative remedies. In this case I took the process all the way to step five, which is the final step in the grievance process . . . I was told that the captain . . . would make the final decision because in step 5 the Bureau Hearing Officer was unable to make a decision . . . I was later told that no further decision was coming and that the time limit to appeal the Hearing Office[r]s "decision" had expired.
(Doc. 11).
Plaintiff attaches a copy of a grievance regarding inadequate medical treatment which he appealed to the Bureau Hearing Officer; Plaintiff received a response from the Bureau Hearing Officer on March 8, 2005, indicating no resolution of the issue was reached. Id., Attach. The grievance form signed by Plaintiff on March 8, 2005, states that, if an inmate "is not satisfied with the Hearing Officer's resolution," he should "submit an inmate institutional Grievance Appeal Form within 24 hours of receipt to the Jail/Division Commander through the Hearing Officer." Id., Attach.
In his reply to Plaintiff's response, Defendant asserts that Plaintiff has presented no evidence that his right to due process was denied. (Doc. 12). Defendant avers that jail inmates are not limited with regard to the issues they may grieve and that detention officers "liberally" distribute grievance forms. Id. With respect to Plaintiff's specific evidence, Defendant states that Plaintiff did not fully grieve his medical treatment claim because he did not pursue an external grievance appeal regarding this claim. Id.
Plaintiff does not assert under oath that he attempted to pursue grievances regarding his section 1983 claims by requesting grievance forms from Defendant's employees, and that Defendant's employees thwarted his efforts to grieve these complaints. Plaintiff does not provide any specific allegation regarding a specific instance during which he requested a grievance form from a specific jail officer and was denied this access to the grievance process. Defendant produces evidence that contradicts Plaintiff's assertion that administrative remedies were not available to Plaintiff with regard to his complaints about jail overcrowding and unsanitary living conditions. Plaintiff acknowledges that he did not grieve his medical treatment claim to the highest administrative level available to him by filing an external grievance appeal of the Hearing Officer's decision within the 24 hour time period dictated by grievance policy and stated on the grievance form.
The Court concludes that, as a matter of law, Plaintiff had administrative remedies available to him regarding his complaints about medical treatment and overcrowded and unsanitary jail living conditions, which he did not fully exhaust although an administrative process was available to him. See Booth, 532 U.S. at 735; Brown, 422 F.3d at 936-37; cf. Jones v. Smith, 266 F.3d 399, 399 (6th Cir. 2001) (concluding that dismissal for failure to exhaust was proper because the plaintiff failed to allege that the prison official who refused to provide a grievance form was the only source of those forms or that plaintiff made other attempts to obtain a form or file a grievance without a form); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (concluding that section 1997e(a) does not permit the court to consider an inmate's subjective beliefs in determining whether administrative procedures are "available."). Although Plaintiff grieved his medical treatment claim, Plaintiff admits that he did not file an external grievance appeal regarding this claim within the time allowed by the jail's grievance procedures. Compare Ngo v. Woodford, 403 F.3d 620, 629-31 (9th Cir.), cert. granted, 126 S. Ct. 647 (2005).
Conclusion
Plaintiff concedes that he did not fully exhaust his administrative remedies regarding the claims stated in his section 1983 complaint, and Defendant has presented evidence to the Court that administrative remedies were available to Plaintiff and that Plaintiff did, in fact, partially pursue an administrative remedy related to one of the claims stated in the complaint, but that Plaintiff did not fully exhaust this claim. Plaintiff does not present any admissable evidence indicating that administrative remedies were not available to him. Therefore, the Court concludes that Plaintiff's complaint must be dismissed without prejudice pursuant to section 1997e because Plaintiff failed to exhaust his administrative remedies regarding his claims prior to filing his section 1983 suit.
THEREFORE, IT IS ORDERED THAT Defendants' Motion to Dismiss is GRANTED. (Doc. 10.) Plaintiff's complaint is hereby dismissed without prejudice.