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Baker v. Grant

United States District Court, W.D. Washington, Seattle

May 2, 2019

JAMALL BAKER, Plaintiff,
v.
JERALD GRANT, et al., Defendants.

          ORDER DIRECTING CLERK TO IDENTIFY PRO BONO COUNSEL

          MARY ALICE THEILER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff, an inmate in the Monroe Correctional Complex Special Offender Unit (“MCC-SOU”), is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action. The two remaining defendants are MCC-SOU employees: Correctional Officer Jerald Grant and Unit Supervisor Jason Neely. Currently before the Court is plaintiff's motion to appoint counsel for the limited purpose of conducting an evidentiary hearing on the issue of whether plaintiff exhausted his First Amendment retaliation claim against Officer Neely. Defendants oppose the motion. Having considered the parties' submissions, the balance of the record, and the governing law, the Court grants plaintiff's motion contingent upon the identification of counsel willing to represent plaintiff pro bono for the limited purpose identified herein.

         II. BACKGROUND

         A. Allegations in Plaintiff's Second Amended Complaint

         The operative complaint alleges the following.[1] Plaintiff has been diagnosed with paranoid schizophrenia, paranoid personality disorder, schizoaffective disorder, and bipolar disorder. (Dkt. 24-2 at ¶¶ 2-3.) On countless occasions between 2014 and 2017, Officer Grant falsely announced to staff members that plaintiff has HIV/AIDS. (Id. at ¶¶ 24-25.) In April 2015, Officer Grant told an inmate that plaintiff was “HIV/AIDS positive” and a snitch from California who was in the witness protection program. (Id. at ¶¶ 7-8.) Officer Grant spread similar rumors among inmates at other times, too. (Id. at ¶¶ 57-58.)

         Plaintiff asked Officer Grant to stop spreading rumors about him or he would litigate. (Id. at ¶¶ 32-33.) Officer Grant responded, “So what, you are a paranoid schizophrenic, a judge will never believe you over me. . . . I don't care, do something while you can.” (Id. at ¶¶ 33-34.) After plaintiff began to complain about Officer Grant's behavior, the officer told him that he would be transferred to another institution and away from his family if he continued to write grievances and file litigation regarding the alleged comments. (Id. at ¶¶ 10-13.) Officer Grant also instructed two inmates to threaten plaintiff with transfer if he continued to file grievances regarding the alleged comments and actions. (Id. at ¶ 14.)

         In February 2017, plaintiff requested and was granted a meeting with Sergeant Clayton, who is Officer Grant's supervisor, Officer Grant, and Officer Neely. (Id. at ¶¶ 50-51.) During the meeting, plaintiff and Officer Grant discussed the claims in this action; Sergeant Clayton and Officer Neely were completely quiet. (Id. at ¶¶ 52-53.) Officer Grant agreed to stop spreading rumors about plaintiff having HIV/AIDS and being in witness protection. (Id. at ¶¶ 54-56.) Officer Grant, however, did not stop. (Id. at ¶¶ 57-58.)

         On April 7, 2017, Officer Neely placed plaintiff in administrative segregation because plaintiff filed a personal restraint petition about Officer Grant. (Id. at ¶¶ 59, 61.) Officer Neely told plaintiff, “Since you like writing grievances and complaints, I'm sending you to the hole. Write your complaints from there.” (Id. at ¶ 64.) Officer Neely fabricated another explanation to justify his actions. (Id. at ¶¶ 60, 62, 63.)

         Based on the foregoing allegations, the Court allowed plaintiff to go forward with a First Amendment retaliation claim against Officer Grant for threatening to have him transferred if he continued to write grievances, a First Amendment retaliation claim against Officer Neely for placing plaintiff in administrative segregation because plaintiff filed a lawsuit against Officer Grant, and an Eighth Amendment claim against Officer Grant based on spreading rumors that plaintiff has HIV/AIDS and is a snitch. (Dkt. 40 at 1; Dkt. 33 at 6-7, 9-12, 14.)

         B. Relevant procedural history

         In September 2018, defendants moved for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). (Dkt. 51.) Under the PLRA, a prisoner must exhaust “available” administrative remedies before filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); Albino v. Baca, 747 F.3d 1162, 1165 (9th Cir. 2014) (en banc); 42 U.S.C. § 1997e(a). Defendants bear the initial burden of showing that there was an available administrative remedy and that plaintiff did not exhaust that remedy. Albino, 747 F.3d at 1169, 1172. Once that showing is made, the burden shifts to plaintiff, 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 ultimate burden, however, rests with defendants. Id.

         Summary judgment is appropriate if the undisputed evidence, viewed in the light most favorable to plaintiff, 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 at a pretrial evidentiary hearing; plaintiff is not entitled to a jury trial on the issue of exhaustion. Albino, 747 F.3d at 1170-71. But if the Court finds that plaintiff exhausted his 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 Court recommended that defendants' motion for summary judgment be granted in part and denied in part. (Dkt. 66.) With respect to Officer Grant, the Court concluded that plaintiff exhausted his Eighth Amendment claim but failed to exhaust his First Amendment claim. (Id. at 9, 11-12.) With respect to Officer Neely, the Court concluded that disputed issues of material fact prevented it from deciding on summary judgment whether plaintiff failed to ...


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