Opinion
CV 20-02142 PHX DJH (CDB)
08-17-2021
Johnny Angel Granado, Plaintiff, v. David Shinn, et al., Defendants.
HONORABLE DIANE J. HUMETEWA JUDGE
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff's motion seeking leave to proceed on a second amended complaint (ECF No. 28). Plaintiff seeks leave to add a claim that Defendants' use of chemical agents on other prison inmates and during a “hazing” incident violated the Americans with Disabilities Act (“ADA”), in addition to constituting an excessive use of force and a threat to his safety as alleged in the operative complaint.
I. Background
Plaintiff, who is in custody and proceeds pro se, filed a complaint seeking relief pursuant to 42 U.S.C. §1983 on November 20, 2020. (ECF No. 1). Plaintiff was given leave to proceed in forma pauperis and he docketed an amended complaint on January 28, 2021. (ECF Nos. 8, 10). In an order issued March 9, 2021, the Court ordered Defendants Shinn and Stickley to answer Counts One and Two of the Amended Complaint and ordered Defendants Montes, Durazo, Bustillos, and Kile to answer Count Three of the Amended Complaint, i.e., claims of threat-to-safety and excessive force regarding the indiscriminate and unnecessary use of chemical agents by prison staff. (ECF No. 10 at 5, 7). Plaintiff alleges, inter alia, that he suffered numerous potentially fatal asthma attacks as a result of exposure to chemical agents being used on other inmates. (ECF No. 10 at 7). Plaintiff specifically alleges that on June 16, 2020 Defendants Montes, Durazo, Bustillos, and Kile engaged in a “hazing/last day ritual” that involved the “completely unjustified and indiscriminate use of a chemical agent” inside the building where Plaintiff was housed. (ECF No. 10 at 13).
All Defendants waived service on March 29, 2021 and answered the Amended Complaint on June 1, 2021. (ECF Nos. 14-19, 21). A scheduling order issued June 2, 2021, allowing Plaintiff until July 16, 2021 to amend his complaint and requiring the parties to complete discovery by October 29, 2021. (ECF No. 22). Accordingly, Plaintiff's motion seeking leave to amend his complaint, filed July 1, 2021, is timely.
On July 30, 2021, Defendants filed a motion for summary judgment on all of Plaintiff's claims against all Defendants, alleging Plaintiff failed to administratively exhaust his claims prior to filing suit. (ECF No. 40). Defendants argue that Plaintiff's claims regarding the use of chemical agents were not fully exhausted because he did not grieve the issue “to the [ADCRR] Director's level …” (ECF No. 45 at 4-5).
In response to Plaintiff's motion to amend Defendants contend that because Plaintiff's additional claim in the proposed amended complaint arises from the same events on which he was previously allowed to proceed, in accordance with the arguments made in the pending motion for summary judgment Plaintiff has also failed to exhaust the additional claim and allowing amendment to add this claim would be futile. (ECF No. 45).
In response to Defendants' motion for summary judgment Plaintiff contends he did “fully exhaust” his administrative remedies and that the “grievance process was made unavailable to Plaintiff.” (ECF No. 47 at 1). Plaintiff asserts he submitted an inmate grievance appeal to the ADCCR Director regarding the use of chemical agents as a threat to safety and excessive force on September 22, 2020, in Case Number 20-020383, and that he submitted a different grievance appeal to the Director regarding the inappropriate use of chemical agents. (ECF No. 47 at 3). Plaintiff asserts that his appeal in Case Number 20-018151 was returned as “unprocessed” because that case “belonged to a different inmate.” (Id.). Plaintiff provides an Inmate Grievance Appeal dated September 21, 2020, complaining of the use of chemical agents in Case Number 20-020383, which he submitted to the “Director/Central Office;” Plaintiff alleges in the Inmate Grievance Appeal that he did not receive a response with regard to his appeal to the Deputy Warden. (ECF No. 48 at 17, 19). Additionally, an Inmate Grievance Appeal submitted to the Deputy Warden on July 14, 2020, in Case Number 20-018157, regarding the use of chemical agents, states “Unprocessed Filed Appeal to [sic] soon.” (ECF No. 48 at 21). A submission of this grievance appeal to the Director has the Case Number 20-018151 rather than 20-018157, and that submission states: “UNPROCESSED, wrong case # 20-018151 is for another inmate. No. supporting documents attached.” (ECF No. 48 at 23).
II. Governing Law
Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be given leave to amend their complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. E.g., Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Futility of amendment is sufficient to justify denial of a motion for leave to amend. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). A motion to amend is futile if, accepting all of the facts alleged as true, the amended claim would be immediately “subject to dismissal” for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. E.g., Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).
A prisoner must exhaust available administrative remedies before bringing a federal action concerning prison conditions. See Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). The failure to exhaust administrative remedies is an affirmative defense on which the defendant bears the burden of proof. Akhtar, 698 F.3d at 1210; Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially shows that an available administrative remedy existed and the prisoner failed to exhaust that remedy, then the burden of production shifts to the plaintiff to bring forth evidence “showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). Administrative remedies will be deemed unavailable and exhaustion excused if, inter alia, the prison improperly processed an inmate's grievance or if prison staff took any actions that interfered with an inmate's efforts to exhaust his claim. See Nunez v. Duncan, 591 F.3d 1217, 1217 (9th Cir. 2010) (holding an inmate's failure to exhaust may be excused if such failure was not through his own fault but because of a prison official's mistake). If a prisoner has failed to exhaust available administrative remedies, the appropriate remedy is dismissal without prejudice. E.g., Albino, 747 F.3d at 1173; McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002); Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991). A fact-based failure-to-exhaust defense should be asserted in a summary judgment motion, rather than a motion to dismiss pursuant to Rule 12(b)(6). Rodriguez v. County of Los Angeles, 891 F.3d 776, 792 (9th Cir. 2018); Albino, 747 F.3d at 1170.
III. Analysis
Defendants' opposition to Plaintiff's proposed amendment is based on the allegation that allowing Plaintiff to proceed on the additional claim is futile because the claim is purportedly unexhausted. A claim is futile if it is subject to dismissal pursuant to Rule 12(b)(6); however, whether or not a claim must be dismissed without prejudice is an issue reserved to the Court by means of summary judgment. Accordingly, Plaintiff's proposed additional claim is not subject to dismissal pursuant to Rule 12(b)(6), i.e., at this stage of the proceedings allowing Plaintiff to proceed on the claim cannot be deemed “futile.” Because Defendants allow that the proposed additional claim arises from the same set of facts as the claims at issue in the pending motion for summary judgment, it appears the interests of judicial efficiency will be best served by staying a final decision on Plaintiffs motion to amend pending the resolution of the motion for summary judgment at ECF No. 40.
Accordingly, IT IS RECOMMENDED that Plaintiffs motion at ECF No. 28 be denied without prejudice.
IT IS FURTHER RECOMMENDED that, should Defendants' motion for summary judgment at ECF No. 40 be denied, Plaintiff should be allowed 15 days from the date the order on the motion at ECF No. 40 is docketed to refile his motion to amend and the motion to amend be deemed timely.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment.
The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.