Morgan v. Maricopa County

• Decision Date: 30 April 2003
• Docket Number: No. CV 01-1982 PHX-LOA.,CV 01-1982 PHX-LOA.
• Citation: 259 F.Supp.2d 985
• Parties: James M. MORGAN, Plaintiff, v. MARICOPA COUNTY, Sheriff Joe Arpaio, et al., Defendants.
• Court: U.S. District Court — District of Arizona

259 F.Supp.2d 985

James M. MORGAN, Plaintiff, v. MARICOPA COUNTY, Sheriff Joe Arpaio, et al., Defendants.

No. CV 01-1982 PHX-LOA.

United States District Court, D. Arizona.

April 30, 2003.

Tim D. Coker, Law Offices of Tim Coker, Phoenix, AZ, for plaintiff.

Richard A. Stewart, Cary LaMar Lackey, Joseph I. virgil, Maricopa County Attorney's Office, Phoenix, AZ, for defendants.

ORDER

ANDERSON, United States Magistrate Judge.

This matter arises on Maricopa County's and Sheriff Joe Arpaio's ("Defendants") Motion for Summary Judgment (documents # 24 and # 26), filed on November 15,2002. The parties have consented to full magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). After considering the relevant pleadings ¹, the case law, the written arguments of counsel and the entire file, the Court concludes that Plaintiff James M. Morgan failed to exhaust his administrative remedies within the Maricopa County Jail as required by the Prison Litigation Reform Act ("PLRA") prior to filing this lawsuit. Therefore, the Court will grant the motion and dismiss the case in its entirety.

BACKGROUND

In his Complaint, Plaintiff James M. Morgan ("Morgan") alleges a violation of his federal constitutional right to freedom from an unreasonable search by Maricopa County Sheriff Joe Arpaio ("Arpaio") and Maricopa County, a political entity, as a result of an involuntary body cavity search² ("cavity search") that occurred in the Madison Street Jail in Phoen November 17, 2000. He seeks compensatory damages under 42 U.S.C. § 1983 and § 1986 for the "extreme embarrassment, humiliation, shock, and distress"³ he allegedly suffered due to the nearby presence of two female detention officers during his cavity search. He does not allege that he sustained any physical injuries during, or related to, the objectionable search.⁴ Additionally, Morgan alleges a claim that the Defendants failed to appropriately supervise the jail's detention officers with reckless indifference to the Morgan's rights.

At the time of the subject search, Morgan was in custody as a result of violating the terms of probation imposed upon him as a result of a prior felony conviction. He was arrested for the probation violation on September 29, 2000, entered an admission to violating his probation on October 31, 2000 and was awaiting his final disposition when the subject search occurred. Morgan was eventually given a jail term for violating his probation and was released from custody on August 31, 2001. A month later and over ten months after his constitutional claim arose, Morgan filed suit in state court.

Defendants claim that the cavity search was necessary because jail officials received reliable and credible information that there were a "zip" gun and bullets located somewhere in the jail and that inmate violence could be imminent.⁵ A bullet was found in the Jail which, Defendants argue, justified a non-routine search for contraband throughout the entire jail and every inmate. On the day of the search, the entire jail was placed on a level 4 control override to conduct a non-routine search of the entire jail, including searches of every inmate. A male officer conducted Morgan's cavity search while Morgan was in his cell. Tiffany Acuna, a female detention officer, and, perhaps another female staff member, were outside Morgan's cell, logging all items found during the search. During Morgan's cavity search, another male officer stood in the doorway of Morgan's cell, allegedly blocking Acuna's view of Morgan. Officer Acuna has declared under oath that at no point did she see Morgan nude.⁶ Morgan acknowledges that 17 other inmates in his pod of cells were strip searched but claims he was the only one in his pod who experienced a body cavity search.⁷ No contraband was found on Morgan or in his cell.

On November 17, 2002, and pursuant to the Maricopa County Sheriffs Office's ("MCSO") inmate grievance procedure, Morgan filed a written grievance, claiming $1500.00 as compensation for his humiliation due to the presence of female detention officers during the subject search.⁸ As his grievance form and the affidavit of Raveille Donaldson indicate,⁹ Morgan's grievance was informally resolved between Morgan and the Jail's shift supervisor, Sgt. J. Myers, with the notation in paragraph IV: "Discussed as a one time incident will ensure this will not occur with present staff." Sgt. Myers initialed the preprinted entry: "Forward to Hearing Officer for file (informally resolved)." Both Sgt. Myers and Morgan purportedly executed the document on November 30, 2000. No appeal was taken nor were any Other proceedings held on this grievance. Over ten months later on September 27, 2001, Morgan filed suit in the Maricopa County Superior Court which was timely removed to this court.

The MCSO's Rules and Regulations For Inmates, effective on and after July 1, 1998, contain a detailed, step-by-step grievance process that inmates must exhaust before seeking judicial relief against the MCSO, the Sheriff or any of his staff.¹⁰

Like most grievance systems, it is a sequential review process beginning with the inmate's submittal to any of the detention staff of a timely grievance on the Jail's approved form. If the detention officer does not timely resolve the inmate's complaint within four calendar days of its submission, the inmate may proceed to the next step. If the shift supervisor determines that the grievance cannot be resolved within four calendar days of its submission, the grievance is then forwarded to the hearing officer at the next level. If the matter is not resolved to the inmate's satisfaction within the next nine calendar days, the inmate may file an institutional grievance appeal with the jail commander. If the matter remains unresolved to the inmate's satisfaction at this higher level, the inmate may appeal to the external referee, who will review the grievance and any recommendations and will provide the inmate with a written opinion within 18 calendar days of receiving the appeal. The external referee's response and written decision conclude the formal inmate grievance procedure. The MCSO's Rules and Regulations make clear that an inmate "must use all steps outlined in the Inmate Grievance Procedure before filing a complaint in Federal District Court".¹¹

SUMMARY JUDGMENT

A Court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), FRCvP; Celotex Corp. v. Catrett, All U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Jesinger, 24 F.3d. at 1130. In addition, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, All U.S. at 248, 106 S.Ct. at 2510. The dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), FRCvP; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, All U.S. at 249-50, 106 S.Ct. at 2511. However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255,106 S.Ct. at 2513 [citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598,1608-1609, 26 L.Ed.2d 142 (1970) ].

Whatever facts which may establish a genuine issue of fact must both be in the district court's file and set forth in the response. Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir.2001). The trial court:

"may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."

Id. at 1031.

Contrary to a few circuits, the Ninth Circuit concurs with five other circuits that nonexhaustion under § 1997e(a) of the PLRA does not impose a pleading requirement on a prisoner and holds that § 1997e(a) creates a defense wherein defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) pet. for cert, filed April 1, 2003; Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.2001); Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C.Cir.2001); Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999). Unlike the defendants in Wyatt v. Terhune, supra., Defendants herein have met their burden of establishing that Morgan did not completely exhaust the Jail's administrative remedies before seeking judicial relief.

DISCUSSION

The Prison...