Opinion
3:21-cv-01740-CL
07-17-2023
THOMAS ALVARADO, Plaintiff, v. DEWAYNE HENDRIX, Defendant.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Thomas Alvarado, an adult in custody (“AIC”) at the Federal Correctional Institution in Sheridan, Oregon (“FCI Sheridan”), filed this civil rights action against defendant DeWayne Hendrix challenging his conditions of confinement and alleging violations of his Eighth Amendment rights.
Defendant has filed a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(1) for lack of subject-matter jurisdiction. Def.'s Mot. 6-7, ECF 24. Defendant also argues that he is entitled to summary judgment under Rule 56(a) because Plaintiff failed to exhaust his claim pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Id. at 10. The Court has considered the parties' briefing as well as oral argument. For the reasons discussed below, Defendant's motion to dismiss and motion for summary judgment (ECF 24) should be GRANTED.
BACKGROUND
Plaintiff alleges that he was denied services and adequate medical care at FCI Sheridan in violation of his Eighth Amendment rights. Am. Compl. 1, ECF 7. Plaintiff brings this action against Defendant as warden of FCI Sheridan. Id. Plaintiff filed an amended complaint on January 2, 2022, stating that FCI Sheridan had been on “lockdown for over 18 months” due to CO VID-19 and alleging that there had been “no access” to the prison's administrative grievance forms during lockdown and “no access to the law library or any legal papers.” Id. Plaintiff tested positive for CO VID-19 in December 2020 and alleges that prison officials had him sleep on the floor of the gym with more than 45 other AICs, served him “cold and hard” food, and gave him “no medical treatment or medicine.” Id. at 2. Plaintiff says that he “kept asking [medical staff] for [his] diabetic medication and [something] for [his] severe cough,” but they gave him nothing. Id Plaintiff alleges that he continues to suffer from “shortness of breath and a severe cough that won't go away .. . and high blood pressure,” and says that his medical conditions are “getting worse by the month because [he is] not getting any medical treatment[.]” Id. at 4-5. Plaintiff sought $500,000 in damages in his original complaint, see ECF 1, but did not include a prayer for relief in his amended complaint.
On February 10, 2022, this Court issued an order finding that “Plaintiff s allegations cannot sustain an Eighth Amendment claim for damages under Bivens.” Order 2, ECF 8. The order explained that “a Bivens remedy has not been recognized in the context of food distribution [to AICs], lockdown conditions, or prison density.” Id. (citing Ziglar v. Abbasi, 582 U.S. 120, 139-141 (2017)). The order acknowledged that allegations regarding medical care can support a Bivens claim, but noted Plaintiffs failure to “allege facts demonstrating [Defen dant]'s personal involvement” in the alleged denial of medical care. Id. at 2. The order therefore dismissed Plaintiffs Bivens claim. Id. at 3. However, this Court found, “Plaintiff sufficiently states a claim for injunctive relief against [Defendant] ... in his official capacity.” Id. This Court noted Plaintiffs allegation that Defendant continued to impose “lockdown conditions under which [AIC]s had no access to the grievance process, the law library, or medical care.” Id. at 2. Construing those allegations “liberally” this Court found that “plaintiff seeks access to medical care, at minimum.” Id. (citing Corr. Servs. Corp. v. Molesko, 534 U.S. 61, 74 (2001) (recognizing that “unlike the Bivens remedy . .. injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally”)). Thus, this Court found, “Plaintiff arguably alleges a claim for injunctive relief[,]” and therefore allowed Plaintiffs claim to proceed on that ground. Id. at 2.
Defendant acknowledges that FCI Sheridan modified its operations in response to COVID-19 but disputes that Plaintiff was ever denied access to administrative remedies or medical care. Def.'s Mot. 2-3. Defendant argues that, even if Plaintiff had been denied access to administrative remedies, medical services, or any other form of care, his claim should be dismissed because “the conditions of confinement at FCI Sheridan . .. have changed, thus mooting the request for injunctive relief.” Id. at 2. Alternatively, Defendant argues, he is entitled to summary judgment under the PLRA because Plaintiff failed to exhaust his administrative remedies regarding the claim he presents in this action. Id.
STANDARDS
L Rule 12(b)(1) Motion to Dismiss
“Federal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing Inc., 878 F.3d 770, 773 (9th Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A motion to dismiss brought pursuant Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint. FED. R. C1V. P. 12(b)(1). The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his or her claims. Kokkonen, 511 U.S. at 377. A motion to dismiss on mootness grounds is properly raised under Rule 12(b)(1) because mootness pertains to a federal court's subject matter jurisdiction under Article III. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency”); accord Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Dreier, 106 F.3d at 847 (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).
II. Summary Judgment
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.”' Id. at 324 (citing FED. R. CIV. P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
III. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although ... pro se litigant[s]... may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Moreover, on a motion for summary judgment, a pro se party involved in civil litigation “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). “It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas “where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.” Woodroffe v. Oregon, No. 2:12-CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'dsub nom. Woodroffe v. Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
DISCUSSION
I. Motion to Dismiss
Article III of the U.S. Constitution “limits the jurisdiction of the federal courts to live cases and controversies.” Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010) (citation omitted). The Supreme Court has interpreted this to require “that an actual controversy ... be extant at all stages of review, not merely at the time the complaint is filed.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016), as revised (Feb. 9, 2016). “[A] suit becomes moot, ‘when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.'” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (citation omitted). In determining mootness, “[t]he basic question ... is whether there is a present controversy as to which effective relief can be granted.” Bayer v. Neiman Marcus Grp., 861 F.3d 858, 862 (9th Cir. 2017). A case becomes moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Campbell-Ewald, 577 U.S. at 161 (simplified).
A. Analysis
Defendant argues that Plaintiffs claim is moot because “the conditions Plaintiff complains of are not present [and] there is no case or controversy about FCI Sheridan's response to C0VID-19[.]” Def's Mot. 9. Plaintiff does not cite evidence that he lost access to his legal papers, the law library, the grievance system, and medical care during “lockdown” at FCI Sheridan, but even if those claims were true, Defendant's evidence demonstrates that FCI Sheridan is “not in any sort of lockdown,” id. at 7, and “has not imposed the stringent restrictions implemented at the height of the pandemic since July 2022.” Id. at 3. There is no evidence that FCI Sheridan is or has been denying Plaintiff access to his legal papers or the law library; in fact, Plaintiff says he has been able to use the law library since June 2022, and Plaintiffs case worker attests that he is permitted to store legal materials both inside and outside his cell and has never complained to her about access to his materials. See Pl.'s Mot. Resp. Def's Mot. (“Pl.'s Mot.”) 3, ECF 18 (stating that, “[i]n June 2022, [AICs] started to have access to the law library and yard for the first time since February 2020”); Ayala Pena Deci. ¶ 8, ECF 13 (stating that, “Plaintiff has never asked me about access to his legal materials, nor has he ever told me that he was being denied access to his legal material”).
It is also clear that AICs have had full access to administrative remedies at FCI Sheridan and that, “[a]t no time during the COVID-19 pandemic was the administrative remedy process suspended at FCI Sheridan.” Brieschke Deci. ¶ 14, ECF 25. Plaintiff alleges that he had “no ability to file grievance[s],” Pl.'s Mot. 3, but Defendant's evidence shows that “a total of 919 administrative remedies were filed at FCI Sheridan” from March 1, 2020, to December 22, 2022. Id. Plaintiff does not dispute that evidence, and he fails to explain what relief the Court could grant regarding his access to the grievance system, the law library, or his legal papers. Because Plaintiff has not identified any present harm for the Court to enjoin, and because Article III requires that “an actual controversy ... be extent at all stages of review,” Campbell-Ewald, 577 U.S. at 160, the Court finds that Plaintiff's claims are moot to the extent they seek relief regarding his access to the law library, his legal papers, or the grievance system. See Bayer, 861 F.3d at 864 (noting that “[a] request for injunctive relief remains live only so long as there is some present harm left to enjoin”).
There is also no evidence that Plaintiff suffers from medical conditions that FCI Sheridan has failed to address. Plaintiff alleged in his amended complaint that he has suffered from multiple health issues shortness of breath, a severe cough, diabetes, and high blood pressure, among others and he alleged that he was “not getting any medical treatment for his medical issues.” Am. Compl. 5. However, the medical director at FCI Sheridan, Dr. Andrew Grasley, attests in four separate declarations that he and other medical providers have provided Plaintiff with clinical visits, examinations, testing protocols, medications, and other care to treat his medical needs at FCI Sheridan. Plaintiff's medications list indicates he received care in April and August of 2021, Grasley Deci. Attach. A at 18, and on April 26, 2022, Dr. Grasley examined Plaintiff for medical issues related to “diabetes, endocrine/lipid, hypertension, cardiac, orthopedic/rheumatology and infectious disease.” Grasley Deci. 1 at ¶ 6; id. Plaintiff also received an echocardiogram in July 2022, id. at ¶ 5, an appointment with a cardiologist on November 16, 2022, and “a regularly scheduled chronic care appointment” on November 29, 2022. Grasley Deci. 3 at ¶¶ 8-9. Plaintiff was also scheduled for heart surgery on March 27, 2023, Grasley Deci. 4 at ¶ 6, and there is no evidence that the surgery did not go forward as scheduled.
See Grasley Deci., ECF 17 (“Grasley Deci. 1”) (noting Plaintiff's medical care between August 2021 and August 2022); Grasley Deck, ECF 23 (“Grasley Deci. 2”) (noting Plaintiff's medical care between August 8, 2022, and November 14, 2022); Grasley Deci., ECF 28 (“Grasley Deci. 3”) (noting Plaintiff's medical care between November 14, 2022, and December 14, 2022); and Grasley Deci., ECF 40 (“Grasley Deci. 4”) (noting Plaintiff's medical care between December 14,2022, and February 21,2023).
In sum, if Plaintiff had been denied heart surgery or any medical care that injunctive relief could address, his claim might not be moot. See Stevens v. Beard, No. 19-15838, 2022 WL 17748110, at *3 (9th Cir. Dec. 19, 2022) (noting that the plaintiff had suffered a “prolonged delay” in receiving his approved gender-affirming surgery and finding that his claim was not moot because “federal courts retain jurisdiction over [the plaintiff]'s claim for injunctive relief so long as she has not received the surgery”). Here, however, there are no grounds for injunctive relief because there is no evidence that Plaintiff has been denied medical care or that he suffers medical conditions for which he has received no treatment. Because there is no “present controversy as to which effective relief can be granted,” Bayer, 861 F.3d at 862, the court finds that Plaintiff's claim alleging lack of medical care and other injuries is moot. Because Plaintiff's claim is moot, Defendant is entitled to dismissal under Rule 12(b)(1) for lack of subject-matter jurisdiction. See Campbell-Ewald, 577 U.S, at 161 (noting that a case becomes moot and is properly dismissed for lack of subject-matter jurisdiction “when it is impossible for a court to grant any effectual relief whatever to the prevailing party”).
II. Motion for Summary Judgment
Alternatively, Defendant argues that he is entitled to summary judgment because Plaintiff failed to exhaust his available administrative remedies under the PLRA. Def.'s Mot. 10.
A. PLRA Exhaustion
The PLRA requires AICs to 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 also, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that “the 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”).
The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). A defendant has the initial burden to show that the AIC failed to exhaust available administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (noting, “defendants must produce evidence proving failure to exhaust to carry their burden”). If the defendant shows that the [AIC] did not exhaust an available administrative remedy, “the burden shifts to the [AIC] 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.” Albino, 747 F.3d at 1172; see also Ross v. Blake, 578 U.S. 632, 642 (2016) (“[A]n [AIC] is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'”) (citation omitted). This burden is met when the AIC shows that he or she took “reasonable and appropriate steps” to pursue administrative remedies, but prison officials nonetheless interfered with the AIC's attempts to exhaust or failed to follow correct grievance protocol. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).
B. Federal Bureau of Prisons (“BOP”) Administrative Remedy Program
The Federal BOP Administrative Remedy Program regulations set out four levels of review for AIC grievances. See 28 C.F.R. §§ 542.10, 542.13-542.15; Ayala Pena Deci. ¶ 5. An AIC must first seek informal resolution of his grievance with a staff member by filing form BP-8. 28 C.F.R. § 542.13 (noting, “an [AIC] shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue”); Ayala Pena Deci. ¶ 5 (explaining, “[t]he informal resolution form is colloquially referred to as a BP-8”). If the AIC is dissatisfied with the informal response, the AIC may file a formal Administrative Remedy Request to the warden by submitting a Form BP-9 within twenty days of the alleged condition or incident. 28 C.F.R. § 542.14; Ayala Pena Deci. ¶ 5. If the AIC is dissatisfied with the warden's response, the AIC may appeal by filing a Form BP-10 with the appropriate Regional Director within twenty days of the warden's decision. 28 C.F.R. § 542.15(a); Ayala Pena Deel. ¶ 5. The AIC may file a final appeal, a Form BP-11, with BOP's General Counsel in Washington, D.C. within thirty days of the Regional Director's decision. 28 C.F.R. § 542.15(a); Ayala Pena Deci. ¶ 5. Last, the “[e]xhaustion of administrative remedies does not occur until the [AIC] has requested and been denied relief at all levels of BOP.” Ayala Pena Deci. ¶ 5.
C. Analysis
Regarding the BOP Administrative Remedy Program, Defendant has the initial burden to show that Plaintiff failed to exhaust administrative remedies. Defendant's case manager, Patricia Ayala Pena (“Ayala Pena”), states in her declaration that she is familiar with BOP's Administrative Remedy Program and reviewed Plaintiffs history of administrative remedy requests. Ayala Pena Deci. ¶¶ 5-6. According to Ayala Pena, Plaintiff has had “access to the administrative remedy process” but “has not filed any administrative remedies.” Id. at ¶6. Ayala Pena attests that Plaintiff never asked her for a BP-8 form, never submitted a request for information resolution, and never “filed any BP-9s during his incarceration.” Id. Plaintiff alleges that he was denied access to the grievance system during lockdown at FCI Sheridan, but the record shows that over 900 AICs filed grievances during the dates in question. See Brieschke Deci. ¶ 14 (stating that “a total of 919 administrative remedies were filed at FCI Sheridan” from “March 1, 2020, to December 22, 2022”). The Court therefore finds that Defendant has met his burden to show that Plaintiff failed to exhaust existing and available administrative remedies. See Albino, 747 F.3d at 1166.
The burden now shifts to Plaintiff to show that he took “reasonable and appropriate steps to exhaust his ... claim and was precluded from exhausting, not through his own fault but by the Warden's mistake.” Nunez, 591 F.3d at 1224. In his response, Plaintiff alleges that Ayala Pena “is not being truthful with the court” about Plaintiff purportedly “never asking her about grievance forms”, Resp. 3, but his explanation is not clear, he cites no evidence, and he never claims that he, in fact, requested grievance forms or that his requests were denied. There is also no evidence that anyone at FCI Sheridan “interfered with [his] attempts to exhaust or failed to follow correct grievance protocols.” Osborne v. Peters, No. 2:20-CV-02260-MC, 2022 WL 2904395, at *2 (D. Or. July 22, 2022). Because Plaintiff failed to exhaust existing and available administrative remedies regarding the claim he asserts in this case, and because there is no evidence Plaintiff attempted to do so, Defendant is entitled to summary judgment. See Maynard v. Cisneros, No. 3:20-CV-00691-MK, 2022 WL 2760058, at *3 (D. Or. June 7, 2022), report and recommendation adopted, 2022 WL 2755357 (D. Or. July 14, 2022) (granting the defendants summary judgment on the plaintiff's civil rights claim where the “plaintiff fail[ed] to show that he took reasonable and appropriate steps to exhaust the BOP Administrative Remedy Program”).
RECOMMENDATION
For the reasons stated above, Defendant's motion to dismiss and motion for summary judgment (ECF 24) should be GRANTED.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6. 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).