ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff Arron Eugene Mowry, who was in the custody of the Arizona Department of Corrections (ADC), filed this civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) Defendant Morgan moves to dismiss on the ground that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA).
The Court will grant the motion and terminate the case.
In Count III of his Complaint, Plaintiff alleged that Defendants Eldridge and Morgan used excessive force on him when they cuffed him as he was on his back and then picked him up, causing a break or fracture of Plaintiff's wrist. Defendants then dragged Plaintiff back to his cell and threw him in his own waste. (Doc. 1.)
The Court directed Eldridge and Morgan to answer Count III and dismissed the remaining Counts and Defendants. (Doc. 7 at 6.) Eldridge has not yet been served. (Doc. 9.)
Under the PLRA, a prisoner must exhaust available administrative remedies before bringing a federal action concerning prison conditions.
Exhaustion is an affirmative defense.
In support of his motion, Defendant submits the affidavit of Aurora Aguilar, Hearing Officer at ADC's Central Office (Doc. 22, Ex. 1, Aguilar Aff. ¶ 1); and Department Order (DO) 802, Inmate Grievance Procedure, effective March 3, 2000 through July 13, 2009 (
Defendant asserts that at the time relevant to Plaintiff's Complaint, ADC had a grievance procedure governed by DO 802, Inmate Grievance Procedure. (
The DO provided a multi-step standard-grievance process, which was generally as follows: (1) an inmate had to attempt to informally resolve a complaint within 10 days of the incident by discussing the problem with or submitting an inmate letter to appropriate staff and the CO III was required to respond; (2) if the inmate was not satisfied with the response, he could file a formal grievance to the Grievance Coordinator within 10 calendar days of receipt of the response to the inmate letter; (3) if the inmate was not satisfied with the Grievance Coordinator's response, he could file a grievance appeal to a higher official within 10 calendar days of the receipt response; and (4) if the inmate was not satisfied with the response to his grievance appeal, he could appeal to the ADC Director within 10 calendar days of receipt of the response to the grievance appeal. (
Defendant asserts that according to the Grievance Appeal Log and the Grievance Appeal File, Plaintiff did not file any grievance appeals to the Director regarding the claims in the Complaint. (
Plaintiff opposes the motion and argues that declarations and other evidence, including x-rays of his injury, show that it would have been very difficult, if not impossible, to have fully exhausted his administrative remedies because he lost use of his right hand for several months. (Doc. 30 at 1.) In addition, as he stated in his Complaint, Eldridge told Plaintiff that his grievance would not "go anywhere." Plaintiff claims that Eldridge said this to his face in an aggressive manner, which Plaintiff took as a threat. (
Defendant argues that Plaintiff was physically able to file a grievance and that the alleged statement by Eldridge cannot be reasonably interpreted as a threat. (Doc. 35.)
As to Plaintiff's ability to write, Defendants asserts that although Plaintiff claims to have been injured on June 21, 2009, he submitted five Health Needs Requests (HNR) in July, including two less than two weeks after the injury. (
Plaintiff files an improper sur-reply
The remainder of the sur-reply discusses the merits of the claim. (
The Court finds that Plaintiff failed to exhaust administrative remedies under DO 802 and that he presents insufficient grounds to excuse that failure.
The burden is on Defendants to show that there is an administrative review process and that Plaintiff failed to exhaust his claims under that process.
Here, Plaintiff does not dispute that he failed to exhaust or even begin the grievance process; however, he maintains that remedies were effectively unavailable. Plaintiff claims that he was unable to write, but Defendants proffer evidence that Plaintiff submitted HNRs within a few weeks of the incident; these HNRs are clearly written. It is not until his improper sur-reply that Plaintiff alleges he could not begin the grievance process within the required time frame. Plaintiff fails to explain why he could not have raised this argument in his response, nor does he explain his conclusory statement that he did not trust anyone to help him. The grievance procedure specifically provided that the assigned CO III "shall assist the inmate in completing any grievance form, if the inmate is incapable of completing the grievance form without assistance." (Doc. 22, Down Aff, Attach. A, 802.03 § 1.5.)
The Court is also unpersuaded by Plaintiff's claim of a threat. As Defendant notes, in
But here, the statement allegedly made by Eldridge—that Plaintiff's grievance would not go anywhere—is not a threat. Defendant made no overt or implied suggestion of repercussions if Plaintiff filed a grievance. Even if said in an aggressive tone, it does not constitute a sufficient ground for Plaintiff to assume that the grievance process was unavailable to him. Plaintiff's additional concerns are equally unpersuasive.
The Court will grant Defendant's motion and dismiss the claim against Morgan on the ground of failure to exhaust administrative remedies. Because the same exhaustion requirement applies to the claim against Eldridge, the Court will dismiss him as well and terminate the action.
(1) The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss (Doc. 22).
(2) Defendant's Motion to Dismiss (Doc. 22) is
(3) The action is terminated, and the Clerk of Court must enter judgment accordingly.