Opinion
No. 1 CA-CV 11-0597
05-15-2012
JOHN P. BAKER, Plaintiff/Appellant, v. ALEX DAVENPORT; RICHARD JAEGER; MATTHEW ROBINSON; and DAVID STRAUB, Defendants/Appellees.
Thomas C. Horne, Arizona Attorney General By Michele L. Forney, Assistant Attorney General Attorneys for Appellee Phoenix John P. Baker Plaintiff/Appellant In Propria Persona Buckeye
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-027240
The Honorable Hugh E. Hegyi, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Michele L. Forney, Assistant Attorney General
Attorneys for Appellee
Phoenix
John P. Baker
Plaintiff/Appellant In Propria Persona
Buckeye BROWN, Judge
¶1 John P. Baker, an Arizona Department of Corrections ("ADOC") inmate, appeals from the trial court's order granting summary judgment against him in an action he brought pursuant to 42 U.S.C. § 1983 against five ADOC employees for alleged violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments. Because Baker failed to exhaust his administrative remedies, we affirm.
BACKGROUND
¶2 In December 2007, all inmates housed in protective segregation at the Arizona State Prison Complex ("ASPC") Santa Rita Unit, including Baker, were transferred to the ASPC Manzanita Unit. In August 2009, Baker sued Dora Schriro, Alex Davenport, Richard Jaeger, Matthew Robinson, and David Straub,claiming that as a result of the move, he lost many of the privileges he had previously enjoyed. Baker's complaint included the following allegations: interference with access to legal supplies; limitations on indigent health and welfare items; limits on outdoor recreation, library access, religious services, jobs, and dayroom use; failure to control smoking inside dorms; cancellation of outdoor smoke breaks; failure to control a flu outbreak; a gas leak; use of metal detectors and pat-downs; nonfunctional smoke detectors; failure to control fighting and homosexual activities; and failure to follow the grievance policy.
During the period relevant to Baker's complaint, Davenport was the deputy warden at the Manzanita Unit, Jaeger was a captain, Robinson was a lieutenant/shift commander, and Straub was a correctional officer III. Schriro was the ADOC Director, but Baker failed to timely serve her or her successor as a substituted party. The trial court granted Schriro's motion to dismiss the claims against her, and Baker did not appeal from that ruling. Hereinafter we refer to the four remaining ADOC employees collectively as "Defendants."
¶3 Baker moved for summary judgment, and the Defendants filed a response and cross-motion, arguing inter alia that Baker failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996 ("PLRA") regarding his claims. The trial court granted Defendants' motion, and this appeal followed.
Defendants received Baker's notice of appeal dated June 13, 2011, but the trial court evidently did not. Baker filed a "replacement" notice of appeal dated June 13, 2011 with the trial court on August 12, 2011 and again on August 19, 2011. With no objection from Defendants, the trial court accepted the replacement notice of appeal. On October 31, 2011, we issued an order deeming Baker's August 19, 2011 notice of appeal timely filed.
DISCUSSION
¶4 Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 305, 309, 802 P.2d 1000, 1004, 1008 (1990). We review a trial court's grant of summary judgment de novo and view the facts in the light most favorable to the party against whom judgment was entered. Simon v. Safeway, Inc., 217 Ariz. 330, 336, ¶ 13, 173 P.3d 1031, 1037 (App. 2007).
¶5 The PLRA requires prisoner-plaintiffs to exhaust administrative remedies prior to seeking relief under any federal statute:
No action shall be brought with respect to prison conditions under section 1983 of this title, 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. § 1997(e)(a) (Westlaw 2012). Accordingly, under federal law, a lawsuit "filed by a prisoner before administrative remedies have been exhausted must be dismissed; the [trial] court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment." Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). The PLRA's exhaustion requirement is also mandatory in state court actions filed under § 1983. Baker v. Rolnick, 210 Ariz. 321, 325-26, ¶¶ 17, 22, 110 P.3d 1284, 1288-89 (App. 2005) ("[W]hen Arizona courts have concurrent jurisdiction over federal claims such as § 1983, they apply the federal substantive law along with the attendant federal rules and policies governing such causes of action, including exhaustion requirements."). Thus, to fully exhaust a § 1983 claim, a prisoner must pursue his grievance to the highest administrative level available to him. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
¶6 ADOC Department Order ("DO") 802: Inmate Grievance System governs the grievance process in Arizona. Inmates may use the grievance process to address "[p]roperty, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." DO 802.01 § 1.1.1.1. Under DO 802, an inmate must first file a letter attempting to informally resolve a complaint within ten working days of the incident forming the basis of his grievance. DO 802.08 § 01; 802.09 § 1.1.1. If the inmate is not satisfied with the response to his letter, he may file a formal grievance to the grievance coordinator. DO 802.08 § 1.4. If the inmate is not satisfied with the response, he may file a grievance appeal to higher officials, culminating in the director. DO 802.09 §§ 1.3.1, 1.4.1. The director's response is final. DO 802.09 § 1.4.4. Failure to appeal an issue to the director's level constitutes a failure to exhaust the administrative remedies under DO 802. DO 802.09 § 1.4.4.
The "inmate grievance system" has been renamed the "inmate grievance procedure" and has been updated since the time of the events complained of by Baker. Seehttp://www.azcorrections.gov/Policies/800/0802.pdf (last visited May 10, 2012).
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¶7 Defendants submitted a declaration from the ADOC employee responsible for logging grievance appeals stating that Baker had not filed a grievance appeal to the director on any of the issues raised in his complaint. In his response to Defendants' cross-motion for summary judgment, Baker conceded that he did not exhaust the grievance process prior to filing his lawsuit, but argued that he was unable to do so because Defendant Straub had failed to timely respond to his informal resolution letter. However, DO 802.07 provides that "[e]xpiration of the time limit at any level in the process shall entitle the inmate to proceed to the next review level." Thus, any failure by Straub to timely respond to Baker's letter did not preclude Baker from filing a formal grievance with the grievance coordinator.
¶8 On appeal, Baker asserts that the trial court erred in relying on the ADOC grievance coordinator's declaration, because he argues that Arizona Rule of Civil Procedure 56(e) requires an affidavit, rather than a declaration. However, as the Defendants correctly note, an unsworn statement signed under penalty of perjury may be used in lieu of a sworn statement or affidavit in opposition to a motion for summary judgment. See Ariz. R. Civ. P. 80(i).
¶9 Baker also argues that the trial court erred in failing to permit him to contact inmate witnesses he claims could have verified facts relevant to his allegations about the gas leak and mold. Because Baker failed to exhaust the relevant administrative remedies, the trial court was required to dismiss his complaint, see McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002), and any information those witnesses could have provided concerning the alleged civil rights violations would therefore have been irrelevant.
¶10 Baker additionally asserts that neither the trial court nor Defendants' attorney provided him with notice of the requirements for summary judgment. While federal courts have required notice to pro se prisoner litigants of Rule 56's requirements, see, e.g., Rand v. Rowland, 154 F.3d 952, 956 (9th Cir. 1998), Arizona courts have not adopted this requirement and generally hold pro se litigants to the same standards as represented parties, see, e.g., Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). In any event, notice of the procedural rules for opposing a motion for summary judgment would have been futile here. Baker, not the Defendants, filed the first motion for summary judgment, and he conceded that he did not exhaust the grievance process, thus leaving no material issues of fact in dispute.
CONCLUSION
¶11 For the foregoing reasons, we affirm the trial court's order denying Baker's motion for summary judgment and granting summary judgment in favor of Defendants.
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MICHAEL J. BROWN, Presiding Judge
CONCURRING:
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MARGARET H. DOWNIE, Judge
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ANDREW W. GOULD, Judge