Opinion
No. A98-0199-CV (HRH)
March 28, 2000
ORDER
Defendant's Second Motion for Reconsideration
Defendant moves for reconsideration of the portion of the court's order deciding cross-motions for partial summary judgment. In that order, the court held that plaintiff's requests for money damages based on alleged violations of the Americans with Disabilities Act occurring during his incarceration survive a failure to exhaust challenge based on Section 1997e(a) of the Prison Litigation Reform Act because monetary relief is not available through the administrative process. This motion is opposed.
Clerk's Docket No. 55.
Clerk's Docket No. 51. Defendant's first motion for re-consideration of this order was denied (see Clerk's Docket No. 54).
Clerk's Docket No. 51.
Clerk's Docket No. 58. Plaintiff also filed, at Clerk's Docket No. 61, a reply to defendant's reply which the court has considered.
Facts
The plaintiff is Robert Ovens, a deaf individual who, at the time he filed his complaint, was incarcerated at a correctional facility operated by defendant, the State of Alaska, Department of Corrections (DoC). Plaintiff filed this suit pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by 42 U.S.C. § 2000, et seq., seeking injunctive and declaratory relief and damages against the DoC. Plaintiff's requests for injunctive and declaratory relief were dismissed. Only his request for damages for alleged ADA violations occurring during his incarceration are at issue in the present motion.Plaintiff was incarcerated in Alaska from April 1, 1998, until July of 1998. Plaintiff was then transferred to California in July of 1998 to participate in a substance abuse residential treatment program for the deaf and hearing impaired. He was removed from that program in the fall of 1998 and was reincarcerated in Alaska in November of 1998. In January of 1999, plaintiff was extradited to Michigan. As far as the court is aware, plaintiff has not returned to Alaska nor is he currently under DoC's supervision.
Plaintiff alleges that throughout his incarceration, he requested interpreters in order to communicate with prison officials but was not always provided with an interpreter when he requested one. Although the DoC has a prison grievance system to address prisoner complaints, there is no record of plaintiff initiating any grievance while he was incarcerated. Thus, defendant sought dismissal of plaintiff's claims involving violations of the ADA that occurred during his incarceration because he had not exhausted his administrative remedies. The court originally held that plaintiff's request for money damages survived because damages were not an available remedy under the Alaska prison grievance system. Defendant now contends that money damages are an available remedy and that plaintiff's damage claims for alleged violations of the ADA during his incarceration must also be dismissed.
Discussion
Section 1997e(a) of the Prison Litigation Reform Act (PLRA), Title 42 of the United States Code, provides that:
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. § 1997e(a). The Ninth Circuit has held that the exhaustion requirement does not apply if the plaintiff is only seeking money damages and such damages are not an available remedy through the administrative process. Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir. 1998). Defendant contends that money damages are an available remedy under the DoC's grievance system and offers the affidavits of Allen Cooper, director of institutions for the Alaska Department of Corrections, and Brad Thompson, director of the Division of Risk Management for the Department of Administration of the State of Alaska, to support this contention.
Plaintiff argues that the DoC has not come forward with any authority to support its contention that money damages were available to plaintiff under the prison grievance system for the alleged violations of the ADA. Plaintiff argues that statutes cited by Mr. Thompson in his affidavit only provide that the State of Alaska must obtain insurance to protect state assets, and that the statutes do not provide the DoC with authority to award money damages. Plaintiff argues that the DoC has not provided a single instance were money damages were actually awarded or even considered for this type of complaint. In addition, plaintiff argues that the DoC has never furnished the court, or him, with any written policy that notifies inmates of their right to file a grievance for monetary damages such as those demanded by plaintiff.
The court is convinced that money damages are an available remedy under the Alaska prison grievance system. As the court noted in an earlier order, the Cooper affidavit only addresses policy and actual practice; it did not address the question of authority. But the Thompson affidavit does address the DoC's authority to award money damages. Specifically, Thompson testifies that:
Clerk's Docket No. 57.
if a tort liability against DOC is established by an inmate, Risk Management, in consultation with DOC and the Department of Law (DOL), would, under the authority of AS 37.05.287 — .289, pay for the damages suffered by the inmate. This authority to pay for DOC legal liabilities includes violations of an inmate's or probationer's rights under the Americans With Disabilities Act, which are brought to the state's attention through an inmate grievance, a demand letter or the filing of a lawsuit.
Affidavit of Brad Thompson at 3, lns. 10-18, attached to Defendant's Reply re Motion for Reconsideration, Clerk's Docket No. 59.
This is sufficient evidence to establish that DoC has the authority, through the state Risk Management system, to pay damages for a violation of the ADA.
Whether money damages have ever actually been awarded is not the issue. Nor is the issue whether the DoC has adequately informed prisoners that these damages are available. The issue is whether the DoC has the authority to award such damages. It is clear the DoC does have that authority, thereby making money damages an available administrative remedy in Alaska.
Therefore, in Alaska, pursuant to Section 1997e(a), a prisoner must exhaust his administrative remedies prior to filing a court action even if he is seeking money damages only. This exhaustion requirement is mandatory. Rumbles, 182 F.3d at 1068. The court has no discretion to waive the exhaustion requirement, even if exhaustion would be futile. McCarthy v. Madigan, 503 U.S. 140, 144 (1992) ("Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs." (internal citation omitted)). Applying any exception in the face of a "mandatory" requirement would create an "enormous loophole" in the PLRA. Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998).
But dismissal of plaintiff's claims for money damages is not mandated here even though damages are an available remedy under the Alaska prison grievance system. Section 1997e(a) precludes the filing of a law suit until a prisoner has exhausted all "available" administrative remedies. At the time plaintiff filed his suit, he was incarcerated and he had not exhausted his available administrative remedies. However, plaintiff is no longer incarcerated in Alaska or under the DoC's supervision. Thus the remedies under the Alaska prison grievance system are not "available" to him. While the grievance process allows for the continuance of a grievance if the prisoner is released, it does not allow for the filing of a grievance by a former prisoner who is no longer in custody.
The court is not indicating that it would be futile for plaintiff to seek administrative relief at this point because, as mentioned above, the court cannot, in its discretion, apply the futility exception. The futility exception is "designed to avoid the need to pursue an administrative review that is demonstrably doomed to fail." Diaz v. United Agriculture Employee Welfare Benefit Plan Trust, 50 F.3d 1478, 1485 (9th Cir. 1995). Here, plaintiff's administrative review is not doomed to fail. Rather, it cannot even take place.
Although plaintiff filed this action while he was incarcerated, thereby triggering the PLRA exhaustion requirements, he is now on the same footing as any other former prisoner who would not be required to exhaust his administrative remedies. Plaintiff is not now "a prisoner confined in any jail [or] prison. . . ." 42 U.S.C. § 1997e(a). See Page v. Torrey, Nos. 98-56526, 98-56591, 2000 WL 19219 at *3 (9th Cir. 2000) (holding that former prisoners are not subject to the exhaustion requirement because they do not meet the definition of "prisoner" for purposes of Section 1997e). Therefore, plaintiff's requests for money damages based on alleged violations of the ADA during his incarceration are not subject to dismissal for failure to exhaust administrative remedies even though money damages are available under the Alaska prison grievance system.
Because the court determines that plaintiff's damage claims for alleged violations of the ADA occurring during his incarceration may go forward, the court need not reach plaintiff's counter-argument that Section 1997e(a) is unconstitutional.
Conclusion
Defendant's motion for reconsideration is granted; but, having reconsidered the State's motion for summary judgment, it is again denied as to the issue of failure to exhaust administrative remedies.