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Villareal v. County of Fresno

United States District Court, E.D. California

June 29, 2017

ELAINE K. VILLAREAL, Plaintiff,
v.
COUNTY OF FRESNO, Defendant.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT (ECF NO. 12) ORDER DENYING MOTION TO STRIKE (ECF NO. 31)

         Defendant County of Fresno has moved for summary judgment arguing that it is undisputed that Plaintiff failed to exhaust all available administrative remedies. (ECF No. 12). After reviewing the evidence, the Court finds that there is a dispute of fact that requires an Albino evidentiary hearing. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). For the reasons discussed below and on the record during the hearing on June 26, 2017, (ECF No. 35), the Court sets an evidentiary hearing for September 12, 2017, at 10:00 a.m., to hear all evidence related to the issue of whether Plaintiff's complaint should be dismissed for failure to exhaust all available administrative remedies prior to filing her lawsuit.[1]

         I. BACKGROUND

         Elaine K. Villareal (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 17, 2015, Plaintiff filed the complaint commencing this action. (ECF No. 1). The complaint alleges that Plaintiff has been sentenced to 10 years for an unspecified non-violent offense. Rather than serving her time in prison, she is confined to the Fresno County Jail. She alleges that the jail has dangerous and inhumane living conditions, especially for long-term prisoners like herself. She has no kind of programming. She has no contact visits for holding her children. She has not been offered any kind of transition to everyday living for when she is released. The County Jail was supposed to be used for temporary confinement for defendants waiting for trial or sentencing. Instead, it has become a long term facility.

         Plaintiff states that the walls are falling apart, and some of the pieces of metal are big enough to be used as weapons. There is black mold around the toilets and in the showers. The pieces of cement that come off when Plaintiff sweeps her base boards are full of mildew, mold, and fungus that looks like it could be asbestos. Inmates like Plaintiff who have severe health problems like asthma, allergies, and pulmonary problems, have difficulty breathing. There are also mites from the walls that feed on the prisoners.

         Regarding the issue of exhaustion of administrative remedies, Plaintiff indicated in her complaint that she had filed an appeal or grievance concerning all of the facts contained in the complaint, but the process was not complete because “I still have not heard anything back. I have exhausted all avenues. I have 3 grievences [sic] with no response yet.” (ECF No. 1, at p.2).

         In an order dated November 8, 2016, this Court allowed Plaintiff's action to proceed against the County of Fresno on a claim for violation of the Eighth Amendment based on unconstitutional conditions of confinement. (ECF No. 7) (“This Court finds that Plaintiff states a cognizable claim for violation of the Eighth Amendment based on unconstitutional conditions of confinement in the Fresno County Jail. . . . Plaintiff's allegations of poor building conditions, lack of programming or contact visits, insect infestations and other alleged inhumane conditions raise a cognizable claim that should proceed past the screening phase of the case.”).

         On January 31, 2017, Defendant filed a motion to dismiss on the ground that Plaintiff failed to properly exhaust her administrative remedies. (ECF No. 12). Plaintiff filed an opposition (ECF No. 19) and Defendant filed a reply (ECF No. 20). The Court heard oral arguments on April 7, 2017, and took the matter under submission. (ECF No. 25).

         Because failure to exhaust was not clear on the face of the complaint, [2] on April 11, 2017, the Court converted the motion to dismiss into a motion for summary judgment and gave both parties the opportunity to file additional evidence, as well as a reply and objections to the opposing parties' evidence. (ECF No. 26). On May 16, 2017, Defendant filed a reply and objections to Plaintiff's additional evidence. (ECF No. 28).[3] On June 7, 2017, Plaintiff filed supplemental additional evidence (“Supplemental Additional Evidence”). (ECF No. 30). On June 9, 2017, Defendant objected to Plaintiff's Supplemental Additional Evidence and requested that it be stricken. (ECF No. 31).

         II. LEGAL STANDARDS

         Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 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.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, unless “the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (June 6, 2016). The exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

         As the U.S. Supreme Court recently explained in Ross, 136 S.Ct. at 1856, regarding the PLRA's exhaustion requirement:

[T]hat language is “mandatory”: An inmate “shall” bring “no action” (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies. . . .
[T]hat edict contains one significant qualifier: the remedies must indeed be “available” to the prisoner. But aside from that exception, the PLRA's text suggests no limits on an inmate's obligation to exhaust-irrespective of any “special circumstances.” Id. (internal citations omitted). Also as discussed in Ross, there are no “special circumstances” exceptions to this requirement.

Id. at 1862. The one significant qualifier is that “the remedies must indeed be ‘available' to the prisoner.” Id. at 1856. The Ross Court described this qualification as follows:

[A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. Suppose, for example, that a prison handbook directs inmates to submit their grievances to a particular administrative office-but in practice that office disclaims the capacity to consider those petitions. The procedure is not then “capable of use” for the pertinent purpose. In Booth 's words: “[S]ome redress for a wrong is presupposed by the statute's requirement” of an “available” remedy; “where the relevant administrative procedure lacks authority to provide any relief, ” the inmate has “nothing to exhaust.” Id., at 736, and n. 4, 121 S.Ct. 1819. So too if administrative officials have apparent authority, but decline ever to exercise it. Once again: “[T]he modifier ‘available' requires the possibility of some relief.” Id., at 738, 121 S.Ct. 1819. When the facts on the ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the remedy.
Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. As the Solicitor General put the point: When rules are “so confusing that ... no reasonable prisoner can use them, ” then “they're no longer available.” Tr. of Oral Arg. 23. That is a significantly higher bar than CRIPA established or the Fourth Circuit suggested: The procedures need not be sufficiently “plain” as to preclude any reasonable mistake or debate with respect to their meaning. See § 7(a), 94 Stat. 352; 787 F.3d, at 698-699; supra, at 1855, 1857 - 1859. When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion. But when a remedy is, in Judge Carnes's phrasing, essentially “unknowable”-so that no ordinary prisoner can make sense of what it demands-then it is also unavailable. See Goebert v. Lee County, 510 F.3d 1312, 1323 (C.A.11 2007); Turner v. Burnside, 541 F.3d 1077, 1084 (C.A.11 2008) (“Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes and so are not available”). Accordingly, exhaustion is not required.
And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. In Woodford, we recognized that officials might devise procedural systems (including the blind alleys and quagmires just discussed) in order to “trip[ ] up all but the most skillful prisoners.” 548 U.S., at 102, 126 S.Ct. 2378. And appellate courts have addressed a variety of instances in which officials misled or threatened individual inmates so as to prevent their use of otherwise proper procedures. As all those courts have recognized, such interference with an inmate's pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar.

Id. at 1859-60.

         The failure to exhaust in compliance with section 1997e(a) of the PLRA is an affirmative defense that defendants have the burden of raising and proving. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).

         The Ninth Circuit recently provided guidance regarding the proper procedural device for raising the affirmative defense of exhaustion under section 1997e(a). Albino v. Baca (“Albino II”), 747 F.3d 1162, 1168-69 (9th Cir. 2014) (en banc). Following the decision in Albino II, defendants may raise exhaustion deficiencies as an affirmative defense under section 1997e(a) in either a motion to dismiss pursuant to Rule 12(b)(6) or a motion for summary judgment under Rule 56. Id. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

         Summary judgment is appropriate when it is demonstrated that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, summary judgment will not be granted”). A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the summary judgment stage, the Court “must draw all reasonable inferences in ...


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