Moore v. Hickey

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jeffrey Aaron Moore, No. CV-18-08221-PCT-DLR (MTM) 10 Plaintiff, ORDER 11 v. 12 Unknown Hickey, et al., 13 Defendants. [15] 16 Before the Court is Plaintiff’s Motion for Reconsideration (doc. 84), filed November 17 30, 2020. Plaintiff moves for this Court to reconsider its November 20, 2020 Order (doc. 18 83) denying Plaintiff’s Motion for Declaratory Judgment (doc. 82) and Motion to Vacate 19 the evidentiary hearing currently scheduled for December 18, 2020 (Id.) Plaintiff argues 20 that this Court should have issued a declaratory judgment holding that the exhaustion 21 requirement of the Prison Litigation Reform Act, 42 U.S.C. §1997e et. seq., (“PLRA”) 22 does not apply to cases alleging sexual abuse or violations of the Prison Rape Elimination 23 Act, 34 U.S.C. § 30301 et. seq., (“PREA”).1 For the reasons explained below, the Court 24 declines to reconsider its November 20, 2020 Order and denies the motion. 25 I. Motion for Reconsideration. 26 Plaintiff’s argues the Motion for Reconsideration that the Court’s November 20, 27 2020 Order was fundamentally flawed in its analysis of the PLRA’s exhaustion 28 1 The PREA was originally codified at 42 U.S.C. §§ 15601-15609 . However, the PREA’s provisions were transferred to 34 U.S.C. §§ 30301-30309 as of September 1, 2017. 1 requirement. Plaintiff states that the Court erred because the PREA, and regulations 2 promulgated under the PREA’s ambit, exempt suits alleging sexual abuse in prison from 3 the PLRA’s exhaustion requirement. (Doc. 84 at 1). Plaintiff also argues that the National 4 Prison Rape Elimination Commission’s (“NPREC”) 2009 Report contains a standard that 5 establishes that inmate claims of sexual abuse that implicate PREA are considered 6 exhausted within forty-eight (48) hours of notifying a correctional facility staff member. 7 (Id. at 1-2). Finally, Plaintiff argues that argues that a prisoner is not required to exhaust 8 administrative remedies if those remedies are effectively unavailable, and that the Court 9 should have issued a declaratory judgment confirming that Plaintiff did not have 10 administrative remedies that were effectively available. (Id. at 3, citing Rodriguez v. Cnty. 11 of Los Angeles, 891 F.3d 776 (9th Cir. 2018)). 12 II. Analysis. 13 A. Legal Standard for Motion for Reconsideration. 14 In the District of Arizona, motions for reconsideration are governed by Rule 7.2(g) 15 of the Local Rules of Civil Procedure. Generally, motions for reconsideration are 16 disfavored, and should be granted “only upon a showing of manifest error” or “new facts 17 or legal authority that could not have been raised earlier with reasonable diligence.” Yount 18 v. Salazar, 933 F. Supp. 2d 1215, 1236 (D. Ariz. 2013). As the Motion for Reconsideration 19 primarily argues that the Court’s legal analysis of Plaintiff’s Motion for Declaratory 20 Judgment was deficient, the Court focuses primarily on whether Plaintiff has demonstrated 21 that November 20, 2020 Order was manifestly erroneous. 22 B. PLRA Exhaustion and PREA Claims. 23 The Court declines to reconsider its November 20, 2020 Order. Exhaustion of 24 administrative remedies is mandatory under the PLRA before a prisoner can file a civil 25 rights action in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Once within the 26 discretion of the district court, exhaustion in cases covered by § 1997e(a) is now 27 mandatory.”). The Supreme Court re-affirmed the central holding of Porter after the 2003 28 enactment of PREA. See Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). 1 Several courts in this circuit have rejected the contention that invoking the PREA2 2 exempts a claim from the exhaustion requirement explained in Porter and Woodford. 3 Porter v. Howard, 531 F. Appx. 792, 793 (9th Cir. 2013) (“Porter provides no support for 4 his contention that he was excused from the requirement that he file an administrative 5 grievance by operation of [PREA].”); Farmer v. Otter, No. 14-CV-00345-BLW, 2015 WL 6 5595497 at *5 (D. Idaho Sept. 22, 2015) (“Finally, many courts have held that the PREA’s 7 reporting requirements do not supersede the PLRA’s exhaustion requirements.”) 8 (collecting cases); Myers v. Grubb, No. CV-12-29-H-DLC, 2013 WL 352194 at *1 (D. 9 Mont. Jan. 29, 2013) (“The [PREA] does not impose a different administrative remedy 10 scheme or supersede PLRA’s requirement that a prisoner exhaust all available 11 administrative remedies before filing suit.”) Plaintiff does not point to precedential 12 authority that suggests otherwise. Accordingly, because the Court concludes that the legal 13 conclusion reached in the November 20, 2020 Order is correct, Plaintiff has not 14 demonstrated “manifest error” sufficient to warrant reconsideration.3 15 C. Plaintiff’s Arguments. 16 Plaintiff’s arguments to the contrary are unavailing. Plaintiff argues that the 17 Department of Justice’s regulations promulgated on August 20, 2012 establish that Plaintiff 18 was not required as a matter of law to exhaust administrative remedies before proceeding 19 with this action. (Doc. 84 at 1). According to Plaintiff, this is because there is no time 20 limitation as to when a prisoner can submit a grievance regarding an allegation of sexual 21 abuse. (Id. at 2, citing 28 C.F.R. § 115.52 (b)(1)). Plaintiff concludes that if there is no time [22] 2 The PREA itself does not confer a private right of action. Grindling v. Diana, No. 1623 00424 ACK-KJM, 2016 WL 6080825 at *3 (D. Haw. Sept. 12, 2016) (“Plaintiff appears to allege that Defendants violated his civil rights under the PREA. This claim fails because 24 there is no private cause of action available to Plaintiff under the PREA.”). However, Plaintiff claims only that the PREA exempts the First Amended Complaint (doc. 10) from 25 the PLRA’s exhaustion requirement, not that the PREA confers a right of action. 26 3 In a reported decision from the Western District of New York, the court also concluded that the PREA does not exempt certain claims from the PLRA’s exhaustion requirement. 27 Omaro v. Annucci, 68 F. Supp. 3d 359, 364 (W.D.N.Y. 2014) (“Nothing in the text or legislative history of the PREA suggests that it was intended to abrogate the PLRA’s 28 exhaustion requirement.”). 1 limit to file a grievance regarding an allegation of sexual abuse, then there can be no 2 requirement that Plaintiff exhaust administrative remedies beforehand. (Id.) 3 As a threshold matter, a regulation promulgated by a federal agency cannot 4 supersede a federal law enacted by Congress. Wheeler v. Premiere Credit of North 5 America, LLC, 80 F. Supp. 3d 1108, 1114 (S.D. Cal. 2015), citing United States v. Maes, [6] 546 F.3d 1066, 1068 (9th Cir. 2008) (“A regulation does not trump an otherwise applicable 7 statute unless the regulation’s enabling statute so provides.”). Nothing in the text of the 8 PREA evinces an intent to exempt prison civil rights actions involving sexual abuse from 9 the PLRA’s express command that “[n]o action shall be brought with respect to prison 10 conditions under [ 42 U.S.C. § 1983 ], or any other federal law, by a prisoner confined in 11 any jail, prison, or other correctional facility until such administrative remedies as are 12 available are exhausted.” 42 U.S.C. § 1997e(a). Moreover, nothing in the applicable4 13 regulation governing exhaustion of administrative remedies—28 C.F.R. § 115.52— 14 suggests that exhaustion of administrative remedies is not required when remedies are 15 available. The Court will not read an exemption from the PLRA into the PREA, and cannot 16 read an exemption from the PLRA into the Department of Justice’s regulations. 17 Further, Plaintiff’s conclusion that exhaustion of administrative remedies is not 18 required because federal regulations prohibit establishing a time limit to submit a grievance 19 alleging sexual abuse is flawed. 28 C.F.R. § 115.52 (b)(1) states that a correctional agency 20 cannot impose a time limit on when an inmate must submit a grievance alleging sexual 21 abuse. All that means is that an inmate cannot be denied the grievance procedure if the 22 inmate waits to formally grieve sexual abuse, whether that wait is thirty (30) days, thirty 23 (30) weeks, or even thirty (30) years. That does not mean that the inmate may immediately 24 proceed to federal court to file a civil rights action instead. The more natural reading of the 25 regulation is that the grievance process can begin at any point after the incident, but that it 26 must be completed before the inmate can proceed to federal court, as the PLRA requires. 27 4 Plaintiff also cites to 28 C.F.R. § 115.252 and 28 C.F.R. § 115.352 . (Doc. 84 at 2). However, these regulations govern exhaustion of administrative remedies in Community 28 Confinement Facilities and Juvenile Facilities, respectively, and are not applicable to the correctional facility where Plaintiff is confined. 1 Next, Plaintiff cites to the NPREC Report’s standard that prisons should deem 2 administrative remedies exhausted within forty-eight (48) hours of the report of a prison 3 rape if “a prisoner is in immediate danger and only a court order will provide protection.” 4 (Doc. 84 at 1-2, citing NAT’L PRISON RAPE ELIM. COMM’N, NATIONAL PRISON RAPE 5 ELIMINATION COMMISSION REPORT (2009) at 95.) However, 34 U.S.C. § 30306—the 6 section of the PREA creating the NPREC—makes clear that the NPREC’s task was to 7 create “recommended national standards for reducing prison rape.” 34 U.S.C. § 8 30306(d)(3)(B)(ii). The statute does not empower the NPREC to create mandatory 9 standards, and the forty-eight hour requirement is nowhere to be found in the Department 10 of Justice’s promulgated regulations. 11 Finally, Plaintiff argues that under Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776 12 (9th Cir. 2018), exhaustion of administrative remedies is not required when there is 13 sufficient evidence to demonstrate that the administrative remedy system is “effectively 14 unavailable.” (Doc. 84 at 3). However, even though Rodriguez does state that “a prisoner 15 is excused from the exhaustion requirement in circumstances where administrative 16 remedies are effectively unavailable, including circumstances in which a prisoner has 17 reason to fear retaliation for reporting an incident,” id. at 792 , that passage from the Ninth 18 Circuit’s opinion does not categorically exclude claims from the PLRA’s exhaustion 19 requirement. The “effectively unavailable” exception is a highly fact-dependent inquiry 20 that does not entitle Plaintiff to a declaratory judgment holding that the PLRA exhaustion 21 requirement does not apply. Rather, this is precisely the issue the evidentiary hearing is 22 meant to address, and Plaintiff will be given the opportunity to demonstrate that 23 administrative remedies were not, in fact, available. 24 The remainder of the Motion for Reconsideration presents a number of policy 25 reasons why the PLRA should be revised or repealed in its entirety, and the negative 26 consequences Plaintiff argues stem from the PLRA. (Doc. 84 at 5-7). None of these 27 arguments give the Court liberty to ignore the statutes duly enacted by Congress, and they 28 do not show the Court’s November 20, 2020 Order erroneously applied the law. TI. Conclusion. 2 Plaintiff has not made a sufficient showing of “manifest error” to warrant reconsideration of the Court’s November 20, 2020 Order. Accordingly, the Motion for Reconsideration is denied, and the evidentiary hearing as to exhaustion set for December || 18, 2020 will proceed as scheduled. The Court reminds Defendants of their obligation to 6 || submit a Notice of Compliance to this Court beforehand indicating that all necessary video and audio arrangements to facilitate the hearing have been made, and must also provide a 8 || brief description of the witnesses who will testify, as well as their expected testimony. 9 IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration (doc. 84) is denied. 11 Dated this 2nd day of December, 2020. [12] 13 Wihenk Ve Peareisey Honorable Michael T. MorrisSey 14 United States Magistrate Judge [28] -6-