United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
Alice Theiler United States Magistrate Judge
AND SUMMARY CONCLUSION
a civil rights action brought under 42 U.S.C. § 1983.
Plaintiff Gabriel Eckard is currently confined at the
Snohomish County Jail. He alleges in this action that he
suffered a violation of his federal constitutional rights
while he was confined at the Monroe Correctional Complex
(MCC) - Special Offender Unit (SOU) in May 2018.
(See Dkt. 5.) Plaintiff identifies a single
defendant in this action, MCC Correctional Officer Brian
Wilmoth. Plaintiff seeks declaratory relief and damages.
Defendant Wilmoth now moves for summary judgment. (Dkt. 11.)
Plaintiff has filed a response in opposition to
defendant's summary judgment motion and defendant has
filed a reply brief in support of his motion. (Dkts. 13, 14.)
The Court, having reviewed plaintiff's complaint,
defendant's motion and plaintiff's response thereto,
concludes that defendant's motion for summary judgment
should be granted, and that plaintiff's complaint and
this action should be dismissed with prejudice.
alleges in his complaint that on May 10, 2018, Officer
Wilmoth violated his rights under the Eighth Amendment when
he directed a member of his team to spray oleoresin capsicum
vapor; i.e., pepper spray, into plaintiff's cell
after plaintiff refused multiple directives to submit to a
strip search. (See Dkt. 5 at 4.) Plaintiff further
alleges that Officer Wilmoth violated his rights under the
Fourth Amendment when he ordered plaintiff to submit to a
strip search without having a reasonable suspicion that
plaintiff was in possession of contraband. (Id.)
claims asserted in this action are almost identical to those
asserted in a prior action filed by plaintiff in August 2018
while he was confined at MCC-SOU. See Eckard v.
Wilmoth, C18-1259-RAJ, Dkts. 1, 6. Plaintiff's prior
action was dismissed in February 2019 based on his failure to
exhaust administrative remedies. See id., Dkts. 17,
19. Less than a month later, in March 2019, plaintiff filed
his complaint in this action. (See Dkt. 1.)
Plaintiff acknowledged in his complaint that he had not
exhausted his administrative remedies, but asserted he was no
longer required to do so because he had been released from
prison in September 2018. (See Dkt. 5 at 4.)
Court ordered that plaintiff's complaint be served on
defendant, and defendant now moves for summary judgment.
(Dkts 6, 11.) Defendant argues in his motion that the present
case is barred by res judicata and/or collateral estoppel
because the parties, facts and legal issues are identical to
those raised in plaintiff's previous case which was
dismissed for failure to exhaust administrative remedies.
(Dkt. 11 at 4-5.) Defendant further argues that the instant
action should be dismissed because plaintiff failed to fully
and timely exhaust his administrative remedies with respect
to the claims set forth in his complaint. (See id.
at 6-9.) Finally, defendant asks that the Court enter a
specific finding that plaintiff's claims are frivolous,
malicious, and fail to state a claim upon which relief may be
granted. (Id. at 9-10.) The Court deems it
unnecessary to address defendant's res
judicata/collateral estoppel argument as defendant's
exhaustion argument presents a sufficient basis for dismissal
of this action.
1997e(a) of Title 42 of the United States Code provides that
“[n]o 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.” Section
1997e(a) requires complete exhaustion through any
available process. See Porter v. Nussle 534 U.S.
516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739
(2001). Section 1997e(a) also requires proper
exhaustion. Woodford v. Ngo, 548 U.S. 81, 93 (2006).
“Proper” exhaustion means full compliance by a
prisoner with all procedural requirements of an
institution's grievance process. See id. at
93-95. If administrative remedies have not been exhausted at
the time an action is brought, the action must be dismissed
without prejudice. See McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002) (per curiam).
to exhaust administrative remedies is an affirmative defense
which a defendant must plead and prove. Albino v.
Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)
(citing Jones v. Bock, 549 U.S. 199, 216 (2007)). A
defendant must produce evidence demonstrating that there was
an available administrative remedy and that the prisoner did
not exhaust that remedy. Id. at 1172. The burden
then shifts to the prisoner who must show that there is
something in his case that made the existing remedies
effectively unavailable to him. Id. If undisputed
evidence viewed in the light most favorable to the prisoner
shows a failure to exhaust, a defendant is entitled to
summary judgment. Id. at 1166.
undisputed that the Washington Department of Corrections
(“DOC”) has an Offender Grievance Program
(“OGP”) through which offenders may seek review
of various aspects of their incarceration. (See Dkt.
11 at 44, ¶ 4.) It is also undisputed that plaintiff did
not fully exhaust his remedies under the OGP relative to his
claims against Officer Wilmoth. (See Dkt. 5 at 4.)
The question presented here is whether, under the
circumstances of this case, plaintiff was required to exhaust
his administrative remedies. Plaintiff argues in his response
to defendant's summary judgment motion that because he is
no longer housed in a DOC facility, he no longer has access
to the OGP and, thus, he has no administrative remedies
available to him to challenge Officer Wilmoth's alleged
misconduct. (See Dkt. 13 at 1-2.)
Supreme Court, in Ngo, declined to construe the
phrase “such administrative remedies as are
available” in § 1997e(a) as requiring “a
focus on whether any administrative remedies are presently
available.” Ngo, 548 U.S. at 100. Rather, the
Supreme Court ruled that “saying that a party may not
sue in federal court until the party first pursues all
available avenues of administrative review necessarily means
that, if the party never pursues all available avenues of
administrative review, the person will never be able to sue
in federal court.” See id. at 100. There can
be no question that plaintiff, in filing the instant action,
is attempting to circumvent the exhaustion requirement which
resulted in the dismissal of his prior action. See Eckard
v. Wilmoth, C18-1259-RAJ, Dkt. 18. The Supreme Court
made clear in Ngo that such attempts to bypass
administrative review are not permissible. See Ngo,
548 U.S. at 95-6. As the record before this Court
demonstrates that plaintiff failed to properly and completely
exhaust his administrative remedies through the OGP when he
had the opportunity to do so, defendant's motion for
summary judgment should be granted.
also requests in his motion for summary judgment that the
Court enter a specific finding that plaintiff's claims
are frivolous, malicious, and fail to state a claim upon
which relief may be granted. Because the Court is
recommending dismissal of this action on procedural grounds,
the Court declines to make such findings.
on the foregoing, this Court recommends that defendant's
motion for summary judgment be granted and that
plaintiff's complaint and this action be dismissed with
prejudice. A ...