Petition for Writ of Certiorari — Leslie Grey Vanaman, Petitioner v. J. T. Shartle, Warden, et al.

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE GREY VANAMAN,

Plaintiff-Appellant,

I?i

FILED

AUG 172017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 16-16713

D.C. No. 4:15-cv-0031 1-JGZ

MEMORANDUM*

JT SFIARTLE; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Jennifer G. Zipps, District Judge, Presiding

Submitted August 9, 2017**

Before:

SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Federal prisoner Leslie Grey Vanaman appeals pro se from the district

court's summary judgment in his action brought under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

novd. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (summary

judgment for failure to exhaust administrative remedies); Guatay Christian

Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011) (crossmotions for summary judgment). We may affirm on any basis supported by the

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.

2008). We affirm.

The district court properly granted summary judgment because Vanaman

failed to raise a genuine dispute of material fact as to whether he properly

exhausted administrative remedies or whether administrative remedies were

effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016)

(setting forth circumstances when administrative remedies are unavailable);

Woodford v. Ngo, 548 U.S. 81, 90 (2006) ("[P]roper exhaustion of administrative

remedies... means using all steps that the agency holds out, and doing so properly

(so that the agency addresses the issues on the merits)." (citation, internal quotation

marks, and emphasis omitted)); McBride v. Lopez, 807 F.3d 982, 987-88 (9th Cir.

2015) (to show that a threat rendered the prison grievance system unavailable, a

prisoner must show that he actually believed prison officials would retaliate against

him and that his belief was objectively reasonable). We reject as without merit

Vanaman's contention that summary judgment was not proper on Vanaman's laterarising claims against defendants Hubble and Sargent.

16-16713

The district court's denials of Vanaman's motions to deny further time

extensions and for an order under Federal Rule of Civil Procedure 4(d)(2)(A) were

not an abuse of discretion because Vanaman failed to establish good cause and

Vanaman personally incurred no service-related costs due to defendants' failure to

waive service of process. See Fed. R. Civ. P. 4(d)(2)(A) (providing that if

defendant fails, without good cause, to waive service of process, the court must

impose on the defendant "the expenses later incurred in making service")

(emphasis added); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th

Cir. 2010) (setting forth standard of review); Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609-10 (9th Cir. 1992) (district court has broad discretion to

manage its docket).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief See.Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Vanaman's "motion for judicial notice and request for order" (Docket Entry

No. 11) is denied.

Vanaman's request for an order requiring defendants to pay the costs of

appeal, set forth in his reply brief, is denied.

AFFIRMED.

16-16713

Case 4:15-cv-00311-JGZ Document 90 Piled 09/16/16 Page 1 of 14

476

•1

SKC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

9. Leslie Grey Vanaman,

No. CV 15-00311-TUC-JGZ

Plaintiff,

.Jii I] *i

J.T. Shartle, et al.,

Defendants.

Plaintiff Leslie Grey Vanaman, who is currently confmed in the United States

Penitentiary (USP)-Tucson, brought this civil rights case pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

(Doc. 37.) Defendants filed a Motion for Summary Judgment based on failure to exhaust.

(Doc. 65.) Vanaman filed a Response and Cross Motion for Summary Judgment.' (Docs.

84, 86.)

The Court will grant Defendants' Motion for Summary Judgment, deny

22 Vanaman's Cross Motion for Summary Judgement, and dismiss the action without

23 prejudice.

I. Background

In his First Amended Complaint (FAC), Vanaman asserts First Amendment claims

against USP-Tucson employees Warden J.T. Shartle, Mailroom Supervisor L. Molinar,

The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d

952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doe. 71.)

Case 4:15-cv-00311-JGZ Document 90 Piled 09/16/16 Page 2 of 14

1 Unit Counselor Hubble, ISMICMC Pullen, and STS/SOIVIIP Coordinator Sargent.

(Doc. 37.) Vanaman's claims stem from the rejection for delivery of his January 2015

issue of Cruising World, a publication abut sailing around the world. Vanaman alleges

4 that the January 2015 issue contained a photograph of partially nude children that

-5

Defendants erroneously deemed a threat to prison security, even though the publication is

6 nonsexual in nature, and the photograph is similar to other depictions of nudity

7 commonly available in the prison library. (Id. at 4-5.) On screening under 28 U.S.C.

§ 1915A(a), the Court determined that Vanaman stated First Amendment claims against

9 Shartle, Molinar, Hubble, and Sargent and required these Defendants to answer the

10 claims against them. The Court dismissed the remaining claims and Defendants.

(Doc. 36.)

H. Summary Judgment Standard

A court must 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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). The movant bears the initial responsibility of presenting the basis for its motion

17 and identifying those portions of the record, together with affidavits, if any, that it

believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at

323.

If the movant fails to carry its initial burden of production, the nonmovant need

not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d

1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the

burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that

the fact in contention is material, i.e., a fact that might affect the outcome of the suit

under the governing law, and that the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d

1216, 1221 (9th Cii-. 1995). The nonmovant need not establish a material issue of fact

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 3 of 14

conclusively in its favor, First Nat'l Bank ofAriz. v. Cities Serv. Co., 391 U.S. 253, 288-

89 (1968); however, it must "come forward with specific facts showing that there is a

genuine issue for trial." Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge's function is not to weigh the evidence -and

determine the truth but to determine whether there is a genuine issue for trial. Anderson,

477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and

draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the

cited materials, but it may consider any other materials in the record. Fed. R. Civ. P.

56(c)(3).

M. Defendants' Motion

Exhaustion Legal Standard

Under the Prison Litigation Reform Act, a prisoner must exhaust "available"

administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a);

Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d

16 926, 934-35 (9th Cir. 2005). The prisoner must complete the administrative review

process in accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92

(2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S...

19 516, 523 (2002), regardless of the type of relief offered through the administrative

process, Booth v. Churner, 532 U.S. 731, 741 (2001).

The defendant bears the initial burden to show that there was an available

administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d

1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must

demonstrate that applicable relief remained available in the grievance process). Once that

showing is made, the burden shifts to the prisoner, who must either demonstrate that he,

in fact, exhausted administrative remedies or "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. The

Case 4:15-cv-00311-JGZ Document 90 Filed 09116/16 Page 4 of 14

ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate

if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a

failure to exhaust. Id at 1166, 1168; see Fed. R. Civ. P. 56(a).

If summary judgment is denied, disputed factual questions relevant to exhaustion

should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of

exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted

7 administrative remedies, that administrative remedies were not available, or that the

failure to exhaust administrative remedies should be excused, the case proceeds to the

merits. Id. at 1171.

The Bureau of Prisons (BOP) provides a four-level Administrative Remedy

'Program for prison inmates to seek review regarding any issue of confinement. (Doc. 66,

Def. Statement of Facts, ¶ 1.) Inmates begin the process by making an informal complaint

'14

to a staff member within '20 days of the date the issue arose. (Doc. 66-2, Bacon Deci., ¶J

4-5.) The Federal Correctional Institution (FCC)-Tucson2 directs Correctional Counselors

and Unit Managers to ensure that every effort is made to resolve inmates' complaints at

this level. (Doc. 66 IT 2-3.) If an issue cannot be resolved informally, the inmate's

Correctional Counselor or other members of his Unit team will provide the inmate a

formal administrative request form to submit to the Warden. (Id. ¶11 4-5.) The Warden has

The Prison's Administrative Remedy Program

20 20 calendar days to respond to the inmate's formal request, and, if the inmate is

unsatisfied with the Warden's response, he has 20 days to appeal to the Regional

Director, who then has 30 calendar days to respond. (Doc. 66-2 ¶ 7.) If the inmate is

unsatisfied with the Regional Director's response, he has 30 days to appeal to the General

Counsel, who then has 40 days to respond. (Id.) Appeals to the General Counsel are the

fourth and final level of review. (Id)

Defendants' reference to FCC-Tucson presumably pertains to the prison complex

in Tucson where the USP-Tucson facility is located.

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Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 5 of 14

When an inmate arrives at FCC-Tucson, he participates in an Admission and

Orientation (A&O) Program and is given the Inmate A&O Handbook (hereinafter,' the

Handbook). (Doe. 66 ¶J 6-7; see Doe. 66-3 at 3O-110.) Both the A&O Program and the

Handbook provide information about the. administrative remedy process. (Id. ¶ 8;) The

Handbook states that "[a]ll Administrative Remedy forms may be obtained from [the

inmate's] Correctional Counselor or Unit Team member." (Doe. 66-3 at 75.) In practice,

any member of the inmate's Unit Team may provide him with these forms. (Doe. 66-2

¶ 10.) The Handbook also provides that "if an inmate believes a complaint is of a •

sensitive nature and he would be adversely affected if the complaint became known to the

institution, he may file the complaint directly to the Regional Director." (Doe. 66 ¶ 13;

Doe. 66-3 at 75-76.)

Facts Relevant to Exhaustion

Defendants' Statement of Facts

Vanaman attended the Unit A&O Program and received the Handbook on April 4,

2014, and he attended the Institution A&O Program on April 24, 2014. (Id. ¶11 9-11.)

16 Defendants attach a copy of Vanaman's "Unit Admission and Orientation Program

Checklist," signed by. Vanaman with a typed date of April 4, 2014, stating he received

orientation "in all the applicable areas listed above and.

same with unit staff." (Doe. 66-3 at 106.) The checklist indicates that Vanaman's case

had an opportunity 'to discuss

20 manager covered the orientation section that includes, among other topics,

"Administrative Remedy." (Id.) Additionally, Defendants attach a copy of Vanaman's

22 "Institution Admission and Orientation Program Checklist," signed by Vanaman and

23 dated April 24, 2014, indicating he received instruction from authorized staff on a

number of content areas; including "Administrative Remedy Program." (Doe. 66-3 at

108.)

3 The citation refers to the document and page number generated by the Court's.

Case Management/Electronic Case Filing system.

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 6 of 14

Defendant Hubble served as a Correctional Counselor at USP-Tucson for 13 years

2 until he retired in January 2016. (Doe. 66-4, Rubble Deci., ¶ 1.) Hubble recalls that

Vanaman complained to him about the mailroom's rejection of the publication alleged in

this action. (Id. ¶ 4.) He states that he told Vanaman he needed to attempt to resolve his

issue informally with mailroom staff and provide documentation that he had attempted to

do so before filing a formal complaint. (Id. ¶J 4-6.) Rubble explained that if Vanaman

provided documentation of his conversation with mailroom staff, he (Hubble) would

accept this as proof that Vanaman had attempted to fesolve the issue informally and

would provide Vanaman the forms needed to seek an administrative' remedy. (Id. ¶ 6.)

According to Hubble, Vanaman never provided this documentation to him or requested

forms from him to seek an administrative remedy. (Id. ¶ 7.) Even if Vanaman did request

12 these forms and Rubble refused to give them to him—which Hubble denies—Hubble

attests that Vanaman could have obtained these forms from any other member of his Unit

Team, as provided by policy. (Id. ¶ 9.)

Marlon Bacon has served as Unit Manager at USP-Tucson since August 2012.

(Doe. 66-2, Bacon Peel., ¶ 1.) He states that he and other members of USP-Tucson's

executive staff are accessible nearly every day during the mid-day meal so that inmates

can approach them with questions or requests for administrative remedy forms. (Id. ¶ 11.)

According to Bacon, Vanaman never approached him to request administrative remedy

forms or to complain that other members of his 'Unit Team refused to give him such

forms. (Id. ¶ 12.) Bacon's review of BOP records shows that Vanaman has never filed a

formal request for an administrative remedy during his incarceration. (Id. ¶ 13.)

•23

Vanaman's Statement of Facts

Vanaman disputes that he ever received instruction on the prison's administrative

remedy process. He states that when he was brought to USP-Tucson on April 4, 2015, he

26 arrived in the evening and was escorted to the F-2 Unit, where a unit officer merely

assigned him to a room and walked away. (Doe. 86-1, Vanaman Aff., ¶ 2.) He claims that

no unit staff members ever discussed the items on his unit checklist, and he, only signed

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 7 of 14

the already-dated list several weeks later when he was called into the office area and told

to sign some forms, one of which he believes was the Unit A&O Checklist. (Id. ¶J 7, 17.)

He claims that the person directing him to sign this form said it should have been signed

the day of his arrival and that having Vanaman sign it was a formality. (Id. ¶11 17-18.)

'Vanaman also states that the topic of administrative remedies was never discussed at the

group institution orientation that occurred in the chapel on April 24, 2014. (Id. ¶J 9, 12.)

He claims that not all the topics on the checklist were discussed during that hour-long

presentation, inmates were instructed to sign the checklist before it was filled out, and the

topics were only checked off by presenters after the checklists had been signed, even if

participants had come in late and missed some of the presentations or some items on the

checklist had not been covered at all. (Id. ¶f 10, 14.) Vanaman claims he signed the

checklist because he did not want to start off his time at USP-Tucson by challenging how

things were done, and he believed at the time his signature would be inconsequential. (Id.

¶14.)

Vanaman also disputes that Hubble told him he would provide him an

administrative remedy form after he had shown he had attempted to resolve his issue

informally. Vanaman claims that when he met with Hubble about the rejection of his

magazine, he told Hubble he had requested to view the image in question and his request

had been denied. (Doc. 86-1 TT 21-22.) He claims that Hubble responded to this by

20 telling him that the BOP has the authority to reject certain material; this matter has

already been exhausted by other inmates through the administrative remedy process and

22 taken to the courts; the courts have upheld the BOP's authority to withhold certain

images from entry into the facility and review by inmates; and Vanaman was "lucky" he

got a rejection form because the mailroom would usually just throw away any material

they don't want inmates to receive. (Doc. 86-1 ¶11 21-26.) When Vanaman nonetheless

asked for "either a BP-8 or BP-9," Hubble shouted at him, "Look, I already told you, it's

been through the administrative remedy! We don't have to show you anything! If you

don't like it, you can take it to court!" (Id. ¶ 27.) Vanaman states that he believed from

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 8 of 14

this conversation that no administrative remedy was available to him and he would only

be able to obtain relief in court. (Id. ¶ 28.) He also believed, based on Hubble's tone and

his reputation for retaliation, that "pressing the issue would result in problems." (Id.)

On these facts, the Court concludes that Vanaman failed to exhaust or initiate

formal administrative remedies in this action.4 Vanaman acknowledges in the FAC that

administrative remedies were available at his institution but he did not request

administrative relief as to any of his claims because "[a]dministrative remedy was denied

by Counselor Hubble." (Doc. 37 at 4, 8, 12, 13, 16, 20, 33, 42, 51.) Thus, the only issue

Analysis

10 the Court must consider is whether Vanaman's failure to exhaust should be excused

because, as Vanaman asserts, administrative remedies were made effectively unavailable

to him as a result of Hubble's actions. (See Doc. 86 at 6-11.)

Vanaman's affidavit testimony demonstrates the existence of a factual dispute

about Hubble's response to Vanaman's complaint about his inability to receive or review

the Cruising World publication rejected by the mailroom based on its allegedly prohibited

content. Taking Vanaman's factual assertions as true, as the Court must, Hubble told him

that other prisoners had already exhausted the prison's administrative remedy process for

rejections of prohibited material and had even pursued this issue in the courts and lost.

19 (Doe. 86-1 ¶11 24-25.) Hubble also did not give Vanaman a BP-8 or BP-9 (formal

administrative remedy form)5 as Vanaman requested, but instead shouted at him, "Look, I

already told you, it's been through the administrative remedy! We don't have to show

you anything! If you don't like it, you can take it to court!" (Id. ¶ 27.)

4 Vanaman fails to allege any facts which would support his claim that he initiated

25 the administrative remedy process. (Doe. 86 at 1-2.) Although he asserts that he

26 complained to Molinar and Pullen about withholding his magazine (id.), his verbal

complaint only satisfies the requirement that a prisoner first attempt to resolve his issues

.27 informally; it does not show that Vanaman began the formal administrative remedy

process he was required to complete for exhaustion purposes.

See Doc. 66-3 at 75, Inmate A&O Handbook, "Administrative Remedy Process."

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Case 4:15.-cv-00311-JGZ Document 90 Filed 09/16/16 Page 9 of 14

Defendants argue, and the Court agrees, that Vanaman's factual allegations do not

show that administrative remedies were made effectively unavailable to Vanaman. (See

Doe. 65 at 5-8; Doc. 89 at 2-7.) First, it is undisputed that any member of Vanaman's

Unit Team could have provided him the necessary grievance forms. (Doc. 66-2 ¶ 10,

Doe. 66-3 at 75.) Inferring from Vanaman's facts that Hubble refused to do so, Vanaman

was not without an administrative remedy; he could have requested the required forms

from another member of his. Unit Team. Vanaman does not claim or provide evidence

that he ever sought to do so. Moreover, it is undisputed that Unit Manager Bacon was

9 regularly available to assist inmates during the mid-day meal, and Vanaman never

approached Bacon to request forms or to complain about Hubble's failure to grant his

request. (Doe. 66-2 ¶IJ 11-12.) Although prison officials' refusals to make grievance

12 forms available may show that administrative remedies are effectively unavailable,

Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Miller v. Norris, 247 F.3d 736, 740

(8th Cir. 2001), the facts presented here do not support such a finding. See Jones v. Smith,

266 F.3d 399, 399 (6th Cir. 2001) (finding failure to exhaust where the plaintiff did not

16 'allege that the prison official who refused to provide a grievance form was the only

source of those forms or that he made other attempts to obtain a form or file a grievance

without a form); accord Adkins v. Arpaio, No. CV050374PHXSIVI1\/ULOA, 2006 WL

269965, at *2 (D. Ariz. Jan. 31, 2006).

Second, although Vanaman claims that Hubble used a forceful tone with him and

Vanaman believed that "pressing the issue would result in problems" (Doe. 86-1 ¶ 28),

this, also, does not show that administrative remedies were, made effectively' unavailable.

The Ninth Circuit has recognized that threats of retaliation can render a grievance process

24 effectively unavailable and thereby excuse a prisoner's failure to exhaust. McBride v.

Lopez, 807 F.3d 982, 987 (9th Cir. 2015). To make this showing, however, the prisoner

must "provide a basis for the court to find that he actually believed prison officials would

retaliate against him if he filed a grievance" and he must "demonstrate that his belief was

28 objectively reasonable." Id. Here, Vanaman points to an unrelated incident in which

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Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 10 of 14

Hubble refused to provide him indigent photocopies and "threatened to give [him] a job"

because he did not tolerate inmates being indigent. (Doe. 84 at 3, Doc. 86-1 ¶ 38.) He

also points, generally, to the affidavits of other inmates that he claims show Hubble

"historically refuses remedy to inmates' and he retaliates or threatens to retaliate.

(Doc. 84 at 2-3.) But, Vanaman does not point to any evidence that Hubble threatened to

retaliate against him in this instance, much less that "the threatened retaliation was of

sufficient severity to deter a reasonable prisoner from filing a grievance." McBride, 807

8 F.3d at 987; see also Harris v. Escamilla No. 113CV01354LJOMJSPC, 2016 WL

304289, at *4 (RD. Cal. Jan. 25, 2016) ("Plaintiff has not set forth any facts that would

elevate his assertion from a generalized fear of retaliation to a specific threat."); Garcia v.

Baca, 2008 WL 5119156, at 5 (C.D. Cal. Dec. 2, 2008) ("[A] 'generalized fear of

retaliation is not an exception to the PLRA's exhaustion requirement.").

Moreover, even if the Court could infer a threat based on Vanaman's generalized

claims, this would not excuse Vanaman's failure to exhaust under the circumstances. As

noted, Vanaman could have addressed his fears about Hubble with Unit Manager Bacon,

and he could have sought administrative remedy forms from Bacon or any other Unit

Team member. Additionally, the inmate Handbook provides that "if an inmate believes a

complaint is of a sensitive nature and he would- be adversely affected if the complaint

19 became known to the institution, he may file the complaint directly to the Regional

Director." (Doe. 66 ¶ 13; Doc. 66-3 at 75-76.) Vanaman offers no evidence that he

attempted to do any of these things. In light of these undisputed fact, the Court rejects

Vanaman's assertion that the threat of retaliation left him no choice but to take his issue

directly to court.

Third, Vanaman's assertions that he was not given any instruction on using the

prison's administrative remedy process, either when he was admitted to his housing unit

or during the institution orientation, are insufficient to excuse his failure to exhaust.

Vanaman does not dispute that he received the Handbook, and the evidence shows that

the Handbook contains step-by-step instructions on how to use the administrative remedy

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 11 of 14

process. (Doc. 66-3 at 75-76.) Vanaman's own statement that he requested a BP-8 or BP-

9 form from Hubble also shows he had knowledge of how to initiate an administrative

remedy. (Doc. 86-1 ¶11 20, 27.) Even assuming the unit and institution orientations failed

to cover the administrative remedy process as Vanaman asserts, there is no dispute that

5 the Handbook Vanaman and other prisoners received contained all the instructions

needed regarding exhaustion of administrative remedies and Vanaman demonstrated his

knowledge of that process when he requested forms from Hubble. (Id.) Vanaman has not

provided any evidence which would suggest he was confused about the process or sought

9 further information or explanation from anyone on his Unit Team and/or was denied

assistance.

Vanaman relies on Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010), and

Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005), to show that exhaustion may. be

excused where a prisoner's efforts to exhaust are thwarted by a prison official's mistakes

or where the prisoner has been reliably informed that no further remedies are available to

him. (Doc. 86 at 8.) These cases do not help Vanaman, however. In Nunez, a prison

16 warden responded to a grievance by erroneously directing the prisoner to consult an

17 unavailable policy provision, which the prisoner then made every effort over the next

several months to obtain. 591 F.3d at 1225. The court excused the prisoner's ultimate

failure to exhaust on the ground that inmates cannot be expected to pursue administrative

20 remedies "when they are misled into believing they must respond to a particular

document.

and that document is then not available." Id. In Brown, the court excused

22 an inmate's failure to exhaust after the inmate received a memo in response to his

23 grievance appeal that the court concluded he "could reasonably have understood [to

mean] no further relief was 'available" to him. 422 F.3d at 937-38. Similar facts are not

in evidence here.

The crux of Vanaman's argument is that he "had no reason to go beyond Mr.

Hubble's forceful denial and effective statement that there was no remedy available to

Vanaman." (Doc. 86 at 8 ¶ 16.) By this, Vanaman appears to argue that he took Rubble's

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Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 12 of 14

reported outburst that his issue "has been through the administrative remedy! We don't

have to show you anything! If you don't like it, you can take it to court!" as "reliable

information that the matter was closed." (Doc. 86-1 1 27; Doc. 86 at 3.) But, Vanaman's

reading of Hubble's statements to mean he then had no choice but to take his issue

directly to court conflicts with the administrative remedy process set forth in the

Handbook that Vanaman was evidently attempting to follow when he requested BP-8 or

BP-9 forms from Hubble. Moreover, Hubble was not the only provider of official forms

and information available to Vanaman, and Vanaman does not indicate he saw Hubble as

a reliable or final authority on the administrative remedy process. Quite the opposite,

Vanaman asserts that Hubble has a history of blocking inmates' administrative remedy

access and he feared Hubble would attempt to do so in this case. (See Doe. 86 at 2-3, 4.)

Given these assertions, Vanaman could not have reasonably relied on Hubble's response

as a definitive statement, properly instructing him to bypass the administrative remedy

process and go directly to court, as Vanaman argues. Even accepting that Vanaman may

have been confused about how best to address his issue after his encounter with Hubble,

16 he could have consulted the Handbook, sought clarification from Hubble himself, or

17 requested assistance from anyone else on his Unit Team. Vanaman fails to present

evidence he did any of these things before filing this action. In sum, Vanaman fails to

demonstrate a genuine issue of material fact which would support his claim that he

20 reasonably relied on Hubble's statements to conclude that the prison's administrative

remedy process was effectively unavailable to him and his only remaining option was to

file this action.

Finally, to the extent Hubble's statements may have led Vanaman to believe that

pursuing an administrative remedy would be futile in his case, this, also, does not excuse

the statutory requirement that he must first attempt to do so. See Booth, 532 U.S. at 741

26 n.6 ("we will not read futility or other exceptions into statutory exhaustion

requirements"). For purposes of exhaustion, a prisoner must actually file a grievance and

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Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 13 of 14

have it rejected; "he cannot anticipate that the process will be futile and bypass it."

Pogue v. Calvo, No. CO3-0803 VRW (PR), 2004 WI. 443517 (N.D. Cal. Feb. 24, 2004).

In conclusion, Vanaman has the burden of showing that his failure to exhaust was

4 due to administrative remedies being made effectively unavailable to him. Because he

has failed to put forth sufficient evidence to make this showing, the Court will grant

6 Defendants' Motion for Summary Judgment for failure to exhaust, deny Vanaman's

Cross Motion for Summary Judgment, and dismiss this action without prejudice.

IV. Other Motions

Vanaman previously filed a Motion for Temporary Restraining Order (TRO) and

Preliminary Injunction (Doc. 52), which the Court denied on June 2, 2016. (Doc. 77.)

After the Court denied the Motion, it received Vanaman's Reply (lodged as Doe. 81) and

his "Motion for Extension of Page Limit for Plaintiffs Enclosed Reply (TRO/Prelim

Jnj.)" (Doe. 80). Vanarnan subsequently filed a Motion for Reconsideration, seeking

reconsideration of the Court's June 2, 2016 Order in light of his Reply. (Doc. 82.)

Because the Court will dismiss this action, it cannot grant the injunctive relief Vanaman

seeks. Accordingly, it will deny as moot Vanaman's Motion for Extension of Page Limit

and Motion for Reconsideration.

22 II

-131E

Case 4:15-cv-00311-JGZ Document 90 Filed 09/16/16 Page 14of 14

IT IS ORDERED:

(1) Defendants' Motion for Summary Judgment (Doe. 65) is granted.

(2)

Plaintiff's Cross Motion for Summary Judgment (Doc. 86) is denied.

(3)

Plaintiff's Motion for Extension of Page Limit (Doe. 80) and Motion for

-5

Reconsideration (Doe. 82) are denied as moot.

(4)

The action is dismissed without prejudice. The Clerk of Court must enter

judgment accordingly.

Dated this 15th day of September, 2016.

nited States District Ju ge

-141

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JAN 292018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LESLIE GREY VANAMAN,

Plaintiff-Appellant,

No. 16-16713

D.C. No. 4:15-cv-00311-JGZ

District of Arizona, Tucson

JT SHARTLE; et al.,

Defendants-Appellees.

Before:

SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

The panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing en bane and no

judge has requested a vote on whether to rehear the matter en bane. See Fed. R.

App. P. 35.

Vanaman's petition for panel rehearing and petition for rehearing en bane

(Docket Entry No. 22) are denied.

No further filings will be entertained in this closed case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.