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Soto v. Unknown Sweetman

United States Court of Appeals, Ninth Circuit

February 9, 2018

Angel Soto, Plaintiff-Appellant,
v.
Unknown Sweetman, ADOC Sgt. at SMU II Browning Unit; Unknown Zamora, ADOC CO II at SMU II Browning Unit; Unknown Harris, ADOC CO II at SMU II Browning Unit; Unknown Jones, ADOC CO II at SMU II Browning Unit; Unknown Schell, ADOC CO II at SMU II Browning Unit; Unknown Emore, ADOC CO II at SMU II Browning Unit; Unknown Victoria, ADOC Sgt. at SMU II Browning Unit; Unknown Bope, ADOC CO II at SMU II Browning Unit; Unknown Swaney, ADOC Sgt. at SMU II Browning Unit; Unknown McClellan, ADOC Sgt. at SMU II Browning Unit, Defendants-Appellees.

          Submitted December 5, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding Argued and D.C. No. 2:14-cv-01323-SMM

          Stephen J. Van Stempvoort (argued), Miller Johnson, Grand Rapids, Michigan, for Plaintiff-Appellant.

          Michelle C. Lombino (argued), Assistant United States Attorney; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.

          Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Lee H. Rosenthal, [*] Chief District Judge.

         SUMMARY [**]

         Prisoner Civil Rights

         The panel affirmed the district court's summary judgment in an action brought by an Arizona state inmate pursuant to 42 U.S.C. § 1983 alleging excessive-force and sexual-assault claims against ten Arizona Department of Corrections officers.

         The district court found that the two-year statute of limitations barred plaintiff's claims because his claims accrued in 2010 when the alleged incident occurred but he did not sue until 2014. Plaintiff argued that his claims did not accrue until 2014, because he was told that the Criminal Investigation Unit needed to complete its investigation before he could file an administrative grievance. Plaintiff did not hear from the Criminal Investigation Unit until 2014, at which point he restarted the administrative grievance process, exhausted his administrative remedies and filed suit.

         The panel first declined to adopt plaintiff's proposed rule that a claim does not accrue until administrative remedies have been exhausted. The panel held that when, as in this case, the inmate knows of the acts when they occurred and knows that he was injured, the claim accrues. The panel held that the administrative exhaustion requirement justifies tolling the statute of limitations, but it does not justify creating a new accrual rule.

         The panel held that plaintiff was not entitled to equitable tolling because not only did he fail to include any allegations in his 2014 complaint that he could not proceed with the grievance process until the Criminal Investigation Unit completed its investigation, he failed to submit any declaration, affidavit, authenticated document, or other competent evidence to that effect.

         Dissenting in part, Judge N. Smith stated that: (1) pro se inmates need not comply strictly with the rule that a party must rely on affidavits, depositions, answers to interrogatories, or admissions to defeat summary judgment; (2) the panel failed to accord plaintiff's statement in his response brief appropriate weight; and (3) viewed in the light most favorable to plaintiff, the evidence in the record showed that he diligently pursued the completion of the Criminal Investigation Unit's investigation.

          OPINION

          ROSENTHAL, CHIEF DISTRICT JUDGE.

         Angel Soto, an Arizona state inmate, appeals the district court's grant of summary judgment dismissing his 42 U.S.C. § 1983 excessive-force and sexual-assault claims against ten Arizona Department of Corrections officers. Soto's claims arise from a 2010 incident, but he did not sue until 2014. The district court held that the two-year statute of limitations barred his claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. Background

         Soto alleged in his June 2014 complaint that, in April 2010, corrections officers beat him, stomped on him, and kicked him in the head while he was on mental-health watch; that the officers strapped him to a gurney and sprayed his body with mace; and that one or more of the officers sexually assaulted him by spraying mace into his rectum. Soto alleged a jaw injury, two broken fingers, and a chin injury requiring stitches. He sued under § 1983, seeking damages for violations of his Eighth Amendment rights.

         About a month after the alleged assault, in May 2010, Soto filed a written grievance with the prison, alleging excessive force and sexual assault. Arizona Department of Corrections Order 802 sets out a five-step grievance process. The Order "provides timely administrative remedies to inmate complaints which might otherwise unnecessarily burden the courts." An inmate begins the process by attempting to resolve a grievance informally with prison staff. If that fails, the inmate must submit an informal complaint, or "inmate letter, " to the prison staff within 10 days of the incident that caused the complaint. An officer must respond within 15 days of receiving the inmate letter. The third step requires the inmate to submit a formal grievance to the deputy warden within 5 days of receiving the response. The deputy warden must formally respond within 15 days of receiving the formal grievance. If the deputy warden denies the grievance, the inmate may appeal to the warden within 5 days, and the warden must respond within 20 days of receiving the appeal. Finally, the inmate may appeal the warden's decision to the director of the Department of Corrections within 5 days. The director's decision is the final institutional response and the end of the administrative-remedy process. The inmate may not file suit before that process is exhausted.

         Soto did not sue based on the April 2010 alleged assault until June 2014. The issues are when the two-year statute of limitations began to run and when it ended. These issues turn on when Soto's cause of action accrued and whether the statute of limitations was tolled from the date Soto filed his first inmate letter in 2010 to the date he exhausted his administrative remedies in 2014.

         In his district court filing responding to the defendants' summary judgment motion, Soto stated that, after he submitted his first inmate letter in 2010, he was sent to the Special Services Unit to document his injuries. He stated that while he was at the Special Services Unit, he was told that the Criminal Investigation Unit would be notified about his complaint and would investigate and that he could continue the grievance process when that Unit completed its investigation. Soto stated that he was told it would take a while for the Criminal Investigation Unit to contact him. He stated that he did not hear from the Criminal Investigation Unit until January 2014.

         In January 2014, nearly four years after the alleged assault, Soto submitted a new inmate letter that restarted the grievance process. In that letter, Soto stated that he had told a corrections officer that he was waiting for someone from the Criminal Investigation Unit to talk to him, and that the officer had told Soto to write down what happened. In February 2014, Soto submitted another inmate letter about the 2010 incident, stating that a Criminal Investigation Unit representative had talked to him on January 24, 2014.

         Soto filed a formal grievance in March 2014, the third step in the recommenced grievance process. Three days later, Soto received the deputy warden's response that the allegations were determined to be unfounded. Soto promptly appealed to the warden. On April 4, 2014, Soto received a notice from the Criminal Investigation Unit that his sexual-assault allegations had been investigated and deemed unfounded because of insufficient evidence. Several days later, Soto received the warden's denial of his appeal, which he promptly appealed to the director. On May 2, 2014, the director affirmed the warden's decision, the final step needed to exhaust Soto's administrative remedies.[[1]] Soto filed this suit a month later.

         The district court granted the defendants' summary judgment motion, ruling that Soto's claim accrued in April 2010, when the alleged incident occurred and he knew of his injuries, and that Soto was not entitled to equitable tolling during the three years and nine months before he exhausted his administrative remedies. The district court held that Soto presented no competent evidence that he had to wait for the Criminal Investigation Unit to complete its investigation of his sexual-assault complaint before he could proceed with the grievance process. The district court also held that no competent evidence showed that, during the years Soto was allegedly waiting to hear from the Criminal Investigation Unit, he took any action to follow up on his claim or to ask about the investigation. The district court held that tolling did not apply to extend the limitations period for three years and nine months.

         Soto raises two issues on appeal. First, Soto argues that, because the Prison Litigation Reform Act of 1995, as amended, 42 U.S.C. § 1997e, required him to exhaust his administrative remedies before filing, his claims from the 2010 incident did not accrue until he exhausted those remedies in 2014. Second, he argues that, if his claims accrued in 2010, he is entitled to equitable tolling of the limitations period from 2010 until 2014, the period during which he alleges he was exhausting his administrative remedies.

         II. The Legal Standard

         We review de novo the district court's grant of summary judgment. Fuller v. Idaho Dep't of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017). "[W]e must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Id. (alteration in original) ...


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