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Case No. 2:16-cv-03840-JAK-KES (C.D. Cal. Aug. 27, 2018)

Case No. 2:16-cv-03840-JAK-KES


DEREK WARDLAW, Plaintiff, v. MARINO, et al., Defendants.


This Amended Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

The "Legal Standards" section of the Court's original Report and Recommendation cited certain California state regulations inapplicable to the at-issue Los Angeles County jail facility. (Dkt. 94 at 11.) Those citations are omitted here.



On March 8, 2018, Defendants Ming Chen and Juan Merino (the "Officer Defendants") filed a motion for summary judgment (the "Motion") on the ground that Plaintiff Derek Wardlaw ("Plaintiff") failed to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). (Dkt. 82.) For the reasons below, it is recommended that the Motion be GRANTED. A. The Third Amended Complaint.

1. Parties and Service.

Plaintiff is a pro se inmate currently in custody at Phillips State Prison in Buford, Georgia. He filed his initial civil rights complaint on or around May 23, 2016. (Dkt. 1 [signature date].) The operative Third Amended Complaint (the "TAC") was docketed on November 30, 2016. (Dkt. 22.) The TAC originally named as defendants (1) "Marino (Full Name Unknown)," (2) "Chin (Full Name Unknown)," and (3) "PTS [Prison Transportation Services], LLC (Workers, Names Unknown)." (Id. at 3.) After Plaintiff took discovery to ascertain the correct identities of the Officer Defendants, the Court deemed the TAC amended on July 18, 2017, to name "Ming, Chen" and "Merino, J." (Dkt. 60 at 2.) The United States Marshal served the Officer Defendants in August 2017. (Dkts. 65, 66.) The unknown agents of PTS, LLC (the "PTS Defendants"), who are addressed below, have not been served or appeared. See Section V, supra.

2. Allegations of TAC.

Plaintiff alleges civil rights violations between February 19, 2014 and June 18, 2014 while he was in custody as a pre-trial detainee at Twin Towers Correctional Facility ("TTCF") in Los Angeles, California. (Dkt. 22 at 2, 3, 5.) The TAC contains a number of allegations that are not tied to specific defendants. (See id. at 5-6.) Plaintiff claims that the following actions occurred, for example, without stating who took the actions: (1) while he was in "processing," he was chained to a bench and refused the use of a restroom so that he had to urinate on the floor; (2) he was segregated based on the "color of [his] skin;" (3) he was taken off his prescribed medication and sent to segregated housing without a hearing; (4) he awoke to some cellmates touching his genitals; (5) he was left in a cold cell with no blanket or sleeping mat for a "few nights;" (6) his toilet was clogged for about two weeks, such that he had to use his sink for toilet needs; (7) he was "extradited improperly" to the state of Georgia with six people in a small van and forced to urinate in a container during his trip; and (8) he had no exercise and was on twenty-four hour lockdown for about a month. (Id. at 5-6.)

In addition to these actions, Plaintiff alleges the following facts specifically against the Officer Defendants: • He was "chained to a spyder table leg under [Chen's] controll [sic] and left overnight, [n]o bathroom, no running water, people urinating on the floor." (Id. at 5.) • "[Merino] threw some container of milk at [him] and hit [him] in the testicles" while he lay on his bunk. (Id. at 6.) After Plaintiff "mentioned it to some workers," they "just walked away." (Id.)

Plaintiff contends that, with the exception of the extradition trip, "[e]verything should be on video, camera[s] were everywhere ..." (Id. at 6.) Based on the alleged facts, he asserts violations of "[p]re-trial [d]etainees' rights," his Eighth Amendment rights, "human rights," "constitutional rights" and "due process" rights. (Id. at 5.) He seeks relief including compensatory damages, punitive damages, "Apokatallasso," and "improved conditions." (Id. at 7.) B. The Officer Defendants' Motion To Dismiss.

The Court takes judicial notice of the existence of literature stating that the Greek word "apokatallasso" is associated in scriptures with the concept of reconciliation. See Glen Kinoshita, The Book of Acts As a Case Study Examining the Ministry of Reconciliation, Justice, Spirituality, & Education Journal, Vol. 3, No. 1, at 75 (Spring 2015).

On September 8, 2017, the Officer Defendants moved to dismiss the TAC. (Dkt. 67.) They construed the TAC to assert Eighth and Fourteenth Amendment claims. (Id. at 5.)

The Officer Defendants contended that, as a pre-trial detainee at the time of the relevant events, Plaintiff was barred from asserting Eighth Amendment claims. (Id. at 10.) Further, they argued that the TAC is "replete with legal conclusions" and is "indefinite and ambiguous" in that it cannot be ascertained how Defendants deprived Plaintiff of his constitutional rights. (Id. at 2.) According to the Officer Defendants, the only specific actions alleged against them in the TAC—that Defendant Chen chained Plaintiff to a table and that Defendant Merino hit him in the testicles with a container of milk—do not give rise to Fourteenth Amendment claims. (Id. at 8.) Further, even if they did, then the Officer Defendants argued that they are entitled to qualified immunity as public employees acting within their discretion. (Id. at 8-9.)

Plaintiff opposed the Officer Defendants' motion to dismiss. (Dkt. 73.) On November 13, 2017, the Court issued a non-dispositive order addressing that motion. (Dkt. 75.) It concluded that "many of the actions alleged in the TAC are not tied to either [Officer] Defendant," and found that the only actions specifically attributed to the Officer Defendants are (1) chaining Plaintiff to a "spyder table;" and (2) throwing a milk container at Plaintiff. (Id. at 4 (citing TAC at 5-6).) Deeming it "undisputed" that Plaintiff was a pre-trial detainee at the time of the relevant events, the Court ruled "that the Fourteenth Amendment, rather than the Eighth Amendment" is applicable to Plaintiff's claims. (Id.) It determined that Plaintiff's allegations that Defendant Chen chained him to a table overnight were sufficient to state a Fourteenth Amendment claim. (Id. at 5.) It dismissed without prejudice, however, Plaintiff's claim that Defendant Merino threw a milk container at him, because the allegations failed plausibly to describe "punishment" of a pre-trial detainee. (Id. at 6.) The Court invited further briefing from Plaintiff on whether he should be granted leave to amend that claim. (Id.)

In the same order, the Court also requested further briefing from the parties on the following issues: • Whether the law in existence at the time of the 2014 actions alleged in the TAC justified a finding of qualified immunity (id. at 6-7); • Whether to dismiss Plaintiff's official capacity claims (id. at 7-8); and • Whether Plaintiff's claims were exhausted under the Prison Litigation Reform Act ("PLRA"), which generally bars 42 U.S.C. § 1983 actions relating to prison conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Court's November 2017 order noted that the "TAC appears to admit that Plaintiff did not complete available grievance processes." (Id. at 8.) The TAC (1) alleges that Plaintiff filed a grievance, but (2) states that Plaintiff did not complete the grievance procedure because Plaintiff "was never really told how to go through" it at his institution. (Dkt. 22 at 2.) C. Supplemental Motion To Dismiss Briefing.

On November 21, 2017, the Officer Defendants filed supplemental briefing. (Dkt. 78.) On the issue of exhaustion, the Officer Defendants argued that "[i]t is apparent from the face of the TAC that Plaintiff did not exhaust his administrative remedies." (Id. at 6.) They therefore asked that the Court dismiss his claims at the pleadings stage for failure to exhaust. (Id. at 7.)

Plaintiff submitted a responsive brief on December 4, 2017. (Dkt. 79.) He asserted that "exhaustion of remedies does not apply to Pre-Trial Detainees." (Id. at 2 (citing McCarthy v. Madigan, 503 U.S. 140 (1992) .) Plaintiff contended that the "institution couldn't give [him] what [he] wanted, monies, also exhaustion would of hurt [his] ability to sue (take too long)." (Id.) He also argued, in a manner difficult to comprehend, "Private Administrative Remedy Lawful Notification, and opportunity to respond, co-conspirator." (Id.) D. Summary Judgment Order.

McCarthy is inapplicable. That case, decided in 1992 before the enactment of the PLRA, held that a federal prisoner (not a state prisoner) did not need to exhaust administratively before bringing a Bivens action for money damages. Id. at 156. The Court distinguished federal claims from claims like Plaintiff's against state officials. Id. at 150 ("[Former] Section 1997e imposes a limited exhaustion requirement for a claim brought by a state prisoner ...."). Moreover, after McCarthy, Congress enacted the PLRA, which "differs markedly from its predecessor." Porter v. Nussle, 534 U.S. 516, 524 (2002). Under current law, "exhaustion in cases covered by § 1997e(a) is now mandatory ...." Id.; Booth v. Churner, 532 U.S. 731, 740 (2001) ("Congress replaced the text of the statute as construed in McCarthy with the exhaustion requirement at issue today ....").

Following this supplemental briefing, on February 8, 2018, the Court issued an order requiring the Officer Defendants to move for summary judgment on the issue of exhaustion. (Dkt. 80.) The Court noted that the PLRA "applies to Plaintiff even though he was a pretrial detainee at the time of the alleged conduct." (Id. at 3 (citing Dean v. Doe, No. 15-cv-6239, 2017 U.S. Dist. LEXIS 78266, at *15 n.5 (W.D.N.Y. Mar. 9, 2017) (citing Jessamy v. Ehren, 153 F. Supp. 2d 398, 403 (S.D.N.Y. 2001)); Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (applying PLRA exhaustion requirement to action brought by pretrial detainee)).) It further cited Ninth Circuit precedent holding that "the exhaustion question in PLRA cases should be decided as early as feasible" and "before reaching the merits of a prisoner's claim." (Id. at 3 (citing Albino, 747 F.3d at 1170; id. at 1171 ("[If] feasible, disputed factual questions relevant to exhaustion should be decided at the very beginning of the litigation.")).)

The Court concluded, however, that this was "not the 'rare' case where exhaustion can be fully briefed through a motion to dismiss," and therefore set a summary judgment briefing schedule. (Id. at 4.) It explained as follows:

The PLRA requires that an inmate exhaust only those administrative remedies 'as are available.'" ... In Albino, the Ninth Circuit suggested that a prison's failure to provide information about administrative remedies could be excuse a failure to exhaust. 747

F.3d at 1177; see id. at 1166. Further, based on Plaintiff's filings, it is possible that a mental condition may have rendered an administrative "unavailable" at some time. See Millner v. Biter, 13-cv-02029, 2016 U.S. Dist. LEXIS 30313, at *4 (E.D. Cal. Mar. 8, 2016) ("[A]n inmate's physical or mental condition can render administrative remedies 'effectively unavailable.'").

(Id. at 4 (citations and footnote omitted).)



A. The Summary Judgment Motion And Velasquez Declaration.

Pursuant to the Court's February 2018 order, the Officer Defendants filed the Motion on March 8, 2018. (Dkt. 82.) The Officer Defendants submit a single declaration in support of the Motion from Jose Velasquez (the "Velasquez Declaration"), who is a Deputy Sheriff for the Los Angeles County Sheriff's Department (the "Sheriff's Department") and a Custodian of Records for TTCF. (Dkt. 82-1 ¶ 1.) Attached to the Velasquez Declaration are exhibits reflecting the Sheriff's Department policies on (1) procedures relating to inmate complaints, (2) procedures on handling medical or mental-health related inmate complaints, and (3) procedures on handling Americans with Disabilities Act complaints. (Dkt. 82-1 at 6-25 [Velasquez Decl., Exs. A-C].)

Both the Officer Defendants and the Court issued notices to Plaintiff concerning (1) summary judgment's potential to end his case, and (2) procedural requirements relevant to responding to the Motion. (See Dkts. 83, 84, 85 [notice of clerical error]; Rand v. Rowland, 154 F.3d 952, 953 (9th Cir. 1998).)

Velasquez asserts that the Sheriff's Department "maintains a procedure for handling grievances and/or complaints and/or appeals." (Id. ¶ 4.) According to Velasquez, "any inmate could submit a complaint and/or grievance and/or appeal," and have it "resolved relating to any condition of confinement, including conditions relating to Medical/Mental Health Services." (Id.)

Velasquez declares that an inmate could initiate the grievance process by submitting an "Inmate Complaint Form," to which inmates "had unrestricted access," into a "locked repository." (Id. ¶5.) He states that "all current and incoming inmates, regardless if they are pre-trial detainees or not, are advised on how to file a Complaint and/or Grievance at the time they are processed at the Inmate Reception Center ... and/or the [TTCF]." (Id. ¶ 9.) Furthermore, according to Velasquez, "instructions on how to file a Complaint and/or Grievance are posted throughout the pods" at TTCF. (Id.) He also declares that an inmate "can ask the deputy or sergeant assigned to the pod for guidance." (Id.) Based on these facts, Velasquez concludes that "all inmates are made aware of the guidelines for bringing" an administrative complaint or grievance at TTCF. (Id. ¶ 9.) A Sheriff's Department policy attached as an exhibit to the Velasquez Declaration admonishes deputies against "discourage[ing], hinder[ing] or prohibit[ing] any inmate from filing a complaint." (Dkt. 82-1 at 6 [Velasquez Decl., Ex. A].)

Velasquez declares that the Sheriff's Department "maintains records of Inmate Complaints at [TTCF] for five years." (Id. ¶ 10.) He conducted a search of Sheriff's Department records with respect to "Administrative Complaints and/or Grievances and/or Appeals" lodged by Plaintiff during "the period of February 19, 2014 to June 18, 2014," i.e., the relevant time-period based on the TAC's allegations. (Id. ¶¶ 3, 11.) Velasquez concludes:

The TAC does not provide the dates of the alleged constitutional violations. It does state, however, that Plaintiff's rights were violated by actions "on ... 02/19/2014 to 06/18/2014." (Dkt. 22 at 3.) The time limit imposed by Velasquez is therefore consistent with Plaintiff's allegations. (Id.)

To date, I have not been able to locate any copies, originals or otherwise, of any complaints and/or grievances and/or appeals lodged by Plaintiff during the period of 2014 to the present, which pertain to

any of the allegations arising from the February 19, 2014 to June 18, 2014 incidents. (Id. ¶ 11.)

Based on this declaration, and Plaintiff's statement in the TAC that he did not exhaust the grievance process because he was "never really told how to go through" it, the Officer Defendants contend the Court may find as a matter of law that (1) there was an administrative remedy available to Plaintiff, and (2) that Plaintiff did not exhaust that available remedy. (Dkt. 82 at 8-10.) B. Plaintiff's Response.

On March 20, 2018—in advance of Plaintiff's deadline to oppose the Motion—the Court received from Plaintiff a document dated March 14, 2018, and entitled "Affidavit of Truth" (the "Affidavit"). (Dkt. 86.) Among other things, Plaintiff's filing stated that for his "opposition to [the Officer Defendants'] motion," he "would say that the failure to provide information about Administrative Remedies by workers who knew of incidents at time of occur[re]nces contributed, and those actions would be most indicative of neglected procedures." (Id. at 1-2.) Plaintiff also indicated that he "do[es] not recall at all" information related to administrative remedies being "posted on walls." (Id. at 2.)

The Affidavit states that Plaintiff "attest[s]" to its contents as "true correct and absolute to the best knowledge." (Dkt. 86 at 1.) Accordingly, the Court will construe the filing as a declaration in opposition to the Motion.

On March 26, 2018, the Court issued a minute noting that it was "unclear" if Plaintiff intended the Affidavit to be an opposition to the Officer Defendants' summary judgment motion. (Dkt. 87 at 2.) The Court concluded, "[g]iven Plaintiff's (1) pro se status; and (2) the fact that summary judgment may end his case without a trial, Plaintiff should have a full opportunity to brief the relevant matters." (Id.) It therefore invited Plaintiff to file "further briefings and/or declarations, if desired, to oppose [the Officer Defendants'] summary judgment motion," and directed the Officer Defendants not to file reply briefing until after Plaintiff's opposition deadline expired. (Id.)

On or about April 4, 2018, Plaintiff filed a response to the Court's March 26 minute order. (Dkt. 88 [signature date].) Plaintiff clarified that the Affidavit "was intended to be the opposition to the Defendants motion." (Id. at 1.) The Officer Defendants filed a Reply reiterating the arguments made in the Motion. (Dkt. 89.)



A. Standard for PLRA Exhaustion.

The PLRA requires prisoners to exhaust administrative remedies before filing suit in federal court. 42 U.S.C. § 1997e(a) provides: "No action shall be brought with respect to prison conditions under [42 U.S.C § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Exhaustion is a prerequisite to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002). Even when the prisoner seeks relief not available in the grievance proceedings, notably money damages, exhaustion is required. Id. at 524.

Exhaustion of administrative remedies serves two main purposes. First, exhaustion protects administrative agency authority, giving agencies an opportunity to correct their own mistakes. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion promotes efficiency, because claims generally can be resolved more economically and quickly before an agency than a federal court. Id. "Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims." Id. at 90.

To exhaust claims under the PLRA, a prisoner generally must "us[e] all the steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits)." Id. (emphasis in original) (citation omitted). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. B. Standard for Summary Judgment.

"Summary judgment is only appropriate if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (citing Fed. R. Civ. P. 56(c)). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)).

Failure to exhaust administrative remedies under the PLRA is an affirmative defense that a defendant may raise in a summary judgment motion. Albino, 747 F.3d at 1166. The defendant has the initial burden to prove "[1] that there was an available administrative remedy, and [2] that the plaintiff did not exhaust that available remedy" before filing suit. Id. at 1172. If the defendant carries that burden, then "the burden shifts to the prisoner to 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." Id. The ultimate burden of proof remains, however, with the defendant. Id. / / / / / /



Based on the record, the Officer Defendants have carried their burden of showing that Plaintiff did not exhaust his available administrative remedies. A. The Administrative Process Was Unexhausted.

Through the Velasquez Declaration, the Officer Defendants submit evidence that Plaintiff never filed any prison grievance relating to the events alleged in the TAC. (Dkt. 82-1 ¶ 11 (Velasquez was unable to locate any administrative complaints, grievances, or appeals lodged by Plaintiff from 2014 to present pertaining to "any of the allegations arising from the February 19, 2014 to June 18, 2014 incidents").) In responding to the Motion, Plaintiff does not object to the Velasquez Declaration, declare that he filed a prison grievance, or submit evidence of such a grievance. Further, while the unverified TAC asserts—without citation to evidence—that Plaintiff submitted a prison grievance before filing suit, it also states that the Plaintiff did not complete the administrative process because he was "never really told how to go through it." (Dkt. 22 at 2.) Thus, even if the TAC's bare allegation that Plaintiff filed an initial grievance could serve as evidence at summary judgment (it cannot), then Plaintiff concedes in the TAC that the process was not exhausted. Accordingly, the Court accepts this fact as undisputed. B. Administrative Remedies Were Available to Plaintiff.

Notwithstanding his failure to submit a grievance, Plaintiff asserts that his claims are not barred because "the Administrative Procedures [were] effectively unavailable ...." (Dkt. 86 at 2.) Plaintiff argues that "the failure to provide information about Administrative Remedies by workers who knew of incidents at time of occur[re]nces contributed [to his failure to exhaust], and those actions would be most indicative of neglected procedures." (Dkt. 86 at 1-2.) Plaintiff also contends that he "do[es] not recall at all" information concerning prison grievance procedures being "posted on walls" back in 2014, and he requests "photographic evidence" of that fact—which the Officer Defendants do not submit. (Id. at 2.)

1. Standard On Availability of Administrative Remedies.

"The only limit to § 1997e(a)'s [exhaustion] mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are 'available.'" Ross v. Blake, 136 S. Ct. 1850, 1862 (2016). Thus, "an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).

In Ross, the United States Supreme Court outlined three "circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. They are when: (1) the "administrative procedure ... operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;" (2) the "administrative scheme ... [is] so opaque that it becomes, practically speaking, incapable of use ... so that no ordinary prisoner can make sense of what it demands;" and (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60 (citations omitted).

The Ninth Circuit has characterized the Ross list as "non-exhaustive." Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017). In its February 2018 order, the Court cited Albino, 747 F.3d at 1177, for the proposition that "a prison's failure to provide information about administrative remedies" could excuse a failure to exhaust. (Dkt. 80 at 4.) In Albino, a detainee Albino alleged that he suffered serious injuries due to inmate attacks. Albino, 747 F.3d at 1166-67. The Ninth Circuit found, based on the following facts, that an administrative remedy was unavailable to him:

Albino was beaten several times and repeatedly complained orally to deputies in the jail, asking repeatedly to be placed in protective

custody. The jail had a manual describing a procedure for handling inmate complaints, but this manual was for staff use only and was not made available to inmates. An "adequate supply" of Inmate Complaint Forms was kept "at various locations" within the jail. But such forms had to be requested by an inmate and were never provided to Albino, despite his repeated complaints. Nor was Albino told that he could write a complaint on an ordinary piece of paper and hand it to one of the deputies. Instead, Albino was told that it was his criminal defense attorney's job to protect him from attacks in the jail.

at 1177. Based on these facts, the Ninth Circuit en banc concluded that the Albino defendants had "failed to show a genuine dispute as to whether administrative remedies in the jail were available," and sua sponte granted the plaintiff summary judgment on that issue. Id.; see also McCain v. Peters, 678 F. App'x 534, 535 (9th Cir. 2017) (reversing summary judgment on exhaustion where "the district court did not expressly consider [plaintiff's] evidence that he was not provided with instructions on how to file an appeal, that he did not have access to the necessary forms, or that he had been informed by a prison official that he could not appeal his grievances").

2. Analysis.

This case is distinguishable from Albino and the Officer Defendants have carried their burden of demonstrating that an administrative remedy was available to Plaintiff. The Velasquez Declaration states that TTCF inmates were "advised on how to file a Complaint and/or Grievance" at intake, and that inmate access to grievance forms was "unrestricted." (Dkt. 82-1 ¶¶ 5, 9.) Velasquez further declares that instructions on how to file such a grievance are posted "throughout the pods" at TTCF. (Id. ¶ 9.) Although Plaintiff does not remember whether "instructions" were "posted" on walls, he does not dispute the assertions in the Velasquez Declaration that (1) Plaintiff was instructed at intake on how to file a grievance, or (2) that grievance forms were readily available.

In fact, as noted above, the TAC alleges without evidentiary support that Plaintiff did file a grievance but did not exhaust the administrative process. --------

Accordingly, drawing all factual inferences in Plaintiff's favor, and even assuming that no grievance instructions were posted on TTCF walls, Plaintiff's situation is unlike Albino, where the inmate did not receive grievance forms after numerous complaints and was discouraged by officials from participating in the administrative process. Here, the undisputed facts demonstrate Plaintiff had access to grievance forms and was given instructions at intake on how to use the administrative process. He makes no showing he was dissuaded from filing complaints. Plaintiff instead suggests that he did not file a grievance because (1) he could not obtain money damages through the administrative process, (2) it might delay his lawsuit, or (3) he did not believe that he needed to file a grievance as a pre-trial detainee. (Dkt. 79 at 2 ("institution couldn't give me what I wanted, monies, also exhaustion would of hurt my ability to sue (take too long)"); id. ("exhaustion of remedies does not apply to Pre-Trial Detainees").) Those excuses do not render an administrative remedy unavailable. See Porter, 534 U.S. at 524 ("Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.").

Moreover, while Plaintiff appears to contend that prison officials were obligated to advise him anew of grievance procedures after each "incident" described in the TAC (Dkt. 86 at 1-2), he cites no authority for requiring prison officials to explain the administrative complaint process every time an inmate believes the prison has engaged in improper conduct. Such a requirement would be unworkable in practice, as it would mandate that institutions anticipate when inmates believe they have suffered a constitutional violation and proactively inform them of their grievance rights.

3. Mental Condition.

For the reasons stated above, the Court rejects the contention that TTCF inadequately informed Plaintiff of administrative remedies. In its February 2018 order concerning summary judgment, however, the Court also noted sua sponte, "based on Plaintiff's filings, it is possible that a mental condition may have rendered an administrative [remedy] 'unavailable' at some time." (Dkt. 80 at 4 (citing Millner v. Biter, No. 13-cv-02029, 2016 U.S. Dist. LEXIS 30313, at *4 (E.D. Cal. Mar. 8, 2016) ("[A]n inmate's physical or mental condition can render administrative remedies 'effectively unavailable.'")).) The Court cited Plaintiff's "references in briefing to the use of 'mind weapons' and 'psyops' weapons and abuses." (Id. at 4, n. 2.) Based on its independent review of online dockets from the Athens-Clarke County, Georgia, Superior Court, the Court also judicially notices the existence of a trial court order dated December 2014—months after the events alleged in the TAC—finding Plaintiff mentally incompetent to stand trial. See Georgia v. Derek Wardlaw, Case Nos. SU 12 CR 0317 R1, SU 14 CR 0367 (Order dated December 12, 2014) ("After a bench trial held on December 12, 2014, the Court found in favor of the Defendant's Special Plea of Mental Incompetency ...."); see also Porter v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010) (noting that it is proper to take judicial notice of "any state court dockets or pleadings that have been located (including on the Internet)").

In opposing summary judgment, Plaintiff did not contend that any mental impairment prevented him from pursuing administrative remedies while at TTCF. Neither Plaintiff nor the Officer Defendants filed medical records in this action reflecting a mental impairment. Additionally, while Plaintiff was declared mentally incompetent in late 2014, Athens-Clarke County Superior Court criminal case dockets reflect that he subsequently entered guilty pleas and was sentenced in August 2015. Wardlaw, Case No. SU 12 CR 0317 R1 (sentencing entry and transcript dated August 2015); Wardlaw, Case No. SU 14 CR 0367 (petition to enter guilty plea dated August 2015). Plaintiff's ability to enter such pleas demonstrates a restoration of his competence as of August 2015, but Plaintiff did not seek to pursue administrative remedies available at TTCF before filing his initial federal Complaint in May 2016. (Dkt. 1; see Baker v. Schriro, No. 07-cv-0353, 2008 U.S. Dist. LEXIS 19892, at *15-16 (D. Ariz. Mar. 4, 2008) ("In those cases where injury or illness was deemed a defense to nonexhaustion, the plaintiffs attempted to use the grievance system, but their grievances were rejected as untimely."); Jenkins v. Fed. Bureau of Prisons, No. 10-cv-1968, 2011 U.S. Dist. LEXIS 110926, at *15 (D.S.C. Sep. 26, 2011) ("[O]nce the inmate is no longer inhibited by his injury, he must file a grievance and be denied before the remedies will be deemed unavailable.").)

Accordingly, although the docket in this case reflects that Plaintiff's filings have, at times, contained irrational or delusional theories, a dispute of fact does not exist on this record as to whether Plaintiff's mental condition rendered administrative remedies unavailable. In August 2015—after the alleged constitutional violations at TTCF, but before commencement of this action—Plaintiff was able to enter guilty pleas to serious criminal charges. Thereafter, Plaintiff filed his TAC in federal court, identified the Officer Defendants, provided the United States Marshal information sufficient to effect service on them, and responded to Court orders, including by opposing summary judgment. Despite his ability to engage in these activities, Plaintiff never filed an administrative grievance with the TTCF.

The Court therefore finds that Officer Defendants have carried their burden of demonstrating as a matter of law that (1) administrative remedies were available to Plaintiff, but (2) he did not avail himself of them. Plaintiff has not "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; Gaines v. Bennett, No. 2:13-cv- 2070, 2016 U.S. Dist. LEXIS 13736, at *20 (E.D. Cal. Feb. 3, 2016), adopted at Gaines, No. 2:13-cv-2070, Dkt. 33 (E.D. Cal. March 21, 2016) ("In the absence of specific allegations that plaintiff did not have access to [the prison's] administrative appeal process following his assault, the court finds that defendants have met their burden of demonstrating that plaintiff had an administrative remedy at [the prison], of which he was aware and which he allegedly initiated."); Perrotte v. Johnson, No. 15-cv-00026, 2017 U.S. Dist. LEXIS 7039, at *32 (E.D. Cal. Jan. 17, 2017), adopted at 2017 U.S. Dist. LEXIS 28144 (E.D. Cal. Feb. 28, 2017) (granting summary judgment were there was "no evidence that Plaintiff was unaware of the prison's administrative grievance procedure, or that any prison official erred in the interpretation of any regulation in deciding the administrative appeals"). It is recommended that the Officer Defendants' Motion be GRANTED.



A. Factual Background.

As noted above, the TAC also contains claims against the PTS Defendants. Before Plaintiff filed the TAC, on August 4, 2016, the Court stated that it could "not authorize service on ... unknown PTS agents." (Dkt. 11 at 1.) Plaintiff was advised that he could "engage in discovery to ascertain their identities and, once identified, seek leave to file an [amended complaint] naming them." (Id.)

Plaintiff then filed the TAC, which did not state the identities of the PTS Defendants. On February 8, 2018, the Court issued an order requiring Plaintiff to submit to the Court a proposed subpoena containing "a request for records identifying the PTS agents alleged in the TAC" if Plaintiff wished to pursue claims against the PTS Defendants. (Dkt. 80 at 5-6.) The Court attached to that order a blank subpoena form. It warned that "Plaintiff's failure to comply ... will result in the dismissal of the unnamed PTS agents." (Id. at 6.) / / /

To date, Plaintiff has not submitted a proposed subpoena or identified the PTS Defendants. In his Affidavit, Plaintiff stated that he "will need an extension of briefing deadlines to find more facts on PTS extradition," as he will "be ineffectively gathering evidences until [he] reach[es] a proper internet, and market source." (Dkt. 86 at 4.) On March 26, 2018, the Court denied that request, stating, "Plaintiff's pleading has been pending for months. ... Plaintiff should now avail himself of [discovery] methods or indicate that he is voluntarily dismissing the PTS agents." (Dkt. 87 at 2.)

On April 4, 2018, Plaintiff filed a further "Return and Answer" stating, "For the PTS agents their company PTS, LLC should be held liable for their rights violations du[r]ing extradition. But on their dismissal, Plaintiff will seek other remedy. Considering diplomacy fails with and without Justice. Also accepting responsibility of burden of proof while in a position of grave disadvantage." (Dkt. 88 at 1-2 [signature date].) B. Analysis.

The Court recommends that Plaintiff's claims against the PTS Defendants be DISMISSED without prejudice. As an initial matter, the Court construes Plaintiff's refusal to pursue discovery regarding those workers, as well as his April 4 filing referencing their "dismissal," as an indication that he intends to voluntarily dismiss the PTS Defendants. (Dkt. 88 at 2.) This is consistent with Plaintiff's statement that he will "seek other" remedies concerning those defendants. (Id.)

Alternatively, even if Plaintiff did not intend to voluntarily dismiss the PTS Defendants, then the Court recommends that they be dismissed based on Plaintiff's failure to prosecute. It is well-established that a district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-630 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.) (1995) (per curiam). Local Rule 41-1 provides that "[c]ivil suits which have been pending for an unreasonable period of time without any action having been taken therein may, after notice, be dismissed for want of prosecution."

In determining whether to dismiss a case for failure to prosecute or failure to comply with court orders, a district court should consider the following five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the public policy favoring disposition of cases on their merits. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006); Gibbs v. Hedgpeth, 389 F. App'x 671, 673 (9th Cir. 2010). The test is not "mechanical," but provides a "non-exhaustive list of things" to "think about." Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).

Here, the five factors support dismissal of Plaintiff's action against the PTS Defendants based on his failure to prosecute this case by complying with the Court's order to take timely steps to discover the identities of those unknown defendants. The first factor—the public's interest in the expeditious resolution of litigation—"always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

The second factor—the Court's need to manage its docket—also supports dismissal. Plaintiff's "noncompliance [with the Court's February 8 order regarding discovery] has caused [this] action to come to a complete halt, thereby allowing [him] to control the pace of the docket rather than the Court." Id. (internal quotations marks omitted). Plaintiff's inaction frustrates the public's interest in the expeditious resolution of litigation and the Court's need to manage its docket.

The third factor—prejudice to defendants—supports dismissal. Over five months have passed since the Court ordered Plaintiff to pursue discovery to learn the names of the PTS Defendants. (See Dkt. 80 [dated February 8, 2018].) During that time, despite an interim order denying an extension (Dkt. 87), Plaintiff has failed to respond to the Court's order or otherwise identify the PTS Defendants. "[T]he failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure ... The law presumes injury from unreasonable delay." Southwest Marine, Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (citing Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994)).

The fourth factor—availability of less drastic sanctions—favors dismissal. As explained above, the Court gave Plaintiff multiple opportunities to pursue the identities of the PTS Defendants. It has warned Plaintiff twice over the course of several months that failure to conduct relevant discovery would result in dismissal of the PTS Defendants, and provided Plaintiff a form subpoena to facilitate his discovery. (Dkt. 80 at 6; Dkt. 87 at 2.) Nonetheless, Plaintiff still has declined to conduct such discovery, and has provided no indication that he will do so in the future. Instead, as explained above, Plaintiff states that he will "seek other" remedies after the PTS Defendants are dismissed. (Dkt. 88 at 2.) Under these circumstances, the Court is unable to impose a lesser effective sanction, and Plaintiff does not appear to contest dismissal.

The fifth factor—public policy favoring a disposition of an action on its merits—weighs against dismissal. Pagtalunan, 291 F.3d at 643. The impact of that factor is mitigated here, however, by the fact that Plaintiff has conceded that the PTS Defendants will be dismissed and that he will seek other remedies. (Dkt. 88 at 2.)

Since four of five enumerated factors support dismissal, it is recommended that this action be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Local Rule 41-2 states that, "[u]nless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without prejudice." See also Fed. R. Civ. P. 41(b) ("[u]nless the dismissal order states otherwise," a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits absent exceptions that are not relevant here). In general, a court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the circumstances, it is recommended that this action be dismissed without prejudice as to the PTS Defendants.



IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Amended Report and Recommendation; (2) granting summary judgment in favor of the Officer Defendants, and (3) dismissing the PTS Defendants without prejudice. DATED: August 27, 2018



United States Magistrate Judge

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