Bousley v. Alamillo

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ANTOINE BOUSLEY, Case No.: 2:17-cv-00486-APG-DJA 4 Plaintiff Order (1) Granting Defendants’ Motion for Summary Judgment and (2) Denying 5 v. Plaintiff’s Motion for Summary Judgment 6 MARLYN ALAMILLO, et al., [ECF Nos. 23, 29] 7 Defendants 8 Plaintiff Antoine Bousley filed this lawsuit over two incidents that occurred while he was 9 a prisoner at High Desert State Prison (HDSP). The screening order allowed the following 10 claims to proceed: (1) due process against defendants Marlyn Alamillo1 and Jessie Brightwell 11 based on confiscation of pictures from Bousley’s cell and (2) First Amendment retaliation 12 against Alfonso Alvarez, Dario Sanchez, and John Doe correctional officer based on an alleged 13 retaliatory cell search that left Bousley’s cell in disarray. ECF No. 6. 14 The defendants move for summary judgment. Bousley opposes and also moves for 15 summary judgment. I grant the defendants’ motion because no genuine dispute remains that 16 Bousley does not have a due process claim against Alamillo and Brightwell and because Bousley 17 failed to exhaust his administrative remedies against Alvarez, Sanchez, and John Doe. 18 I. ANALYSIS 19 Summary judgment is appropriate if the movant shows “there is no genuine dispute as to 20 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 21 56(a), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” [22] 1 Alamillo married and legally changed her name after this incident. ECF No. 24 at 8. For [23] consistency with the documents prepared at the time of the incident and at the beginning of this lawsuit, I will refer to her as Alamillo. 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if “the evidence 2 is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 3 The party seeking summary judgment bears the initial burden of informing the court of 4 the basis for its motion and identifying those portions of the record that demonstrate the absence 5 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 6 burden then shifts to the non-moving party to set forth specific facts demonstrating there is a 7 genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528 , 531 8 (9th Cir. 2000); Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To defeat 9 summary judgment, the nonmoving party must produce evidence of a genuine dispute of material 10 fact that could satisfy its burden at trial.”). I view the evidence and reasonable inferences in the 11 light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 12 F.3d 915, 920 (9th Cir. 2008). 13 A. Due Process 14 1. Applicable Regulations 15 Nevada Department of Corrections (NDOC) administrative regulation (AR) 422 governs 16 searches and seizures in prison facilities. Under AR 422.01(1)(A)(8), contraband discovered 17 during a search “will be seized and processed for appropriate disposal as required by law or 18 regulation.” ECF No. 24 at 33. HDSP Operations Procedure (OP) 409 provides that items taken 19 from an inmate’s cell during a search must be documented on a cell search log along with the 20 reason why the items were taken. Id. at 68. Items that are contraband are to be taken to the 21 evidence room. Id. at 75. Under OP 711, any inmate property that is not allowed at the prison 22 may be confiscated. Id. at 84. The inmate is notified of the confiscation through use of an 23 Unauthorized Property Disposal Form known as DOC 1517. Id. at 84, 104. DOC 1517 advises 1 the inmate what property was taken and gives the inmate various options for disposition of the 2 property, including the option to appeal the confiscation decision through the prison’s grievance 3 process. Id. at 104. 4 2. The Search of Bousley’s Cell 5 In February 2016, Bousley noticed that two photographs were missing from his cell.2 6 ECF Nos. 7 at 6; 24 at 10. Bousley inquired about what happened and was told to speak to 7 Alamillo and Brightwell. ECF No. 7 at 6. Alamillo admitted taking a photograph, stating she 8 found it offensive. Id. Alamillo did not give Bousley a DOC 1517 nor did she file a notice of 9 charges against Bousley even though she contended at least one of the photographs was 10 contraband. Id. at 7. 11 Alamillo prepared an incident report documenting that she and Brightwell were 12 conducting a cell search when she found a picture of a nude female “conducting penetration with 13 her finger on herself. The picture was confiscated because penetration is against prison policy.” 14 ECF No. 24 at 5. In her affidavit, Alamillo states that she does not recall documenting the 15 confiscation on a cell search log, issuing a DOC 1517 to Bousley, keeping the photograph 16 described in the incident report, or placing it into the evidence room. Id. at 8. 17 Brightwell avers that he participated in the search of Bousley’s cell, that during the 18 search Alamillo found a photograph of a nude female penetrating herself with her finger, and that 19 Alamillo confiscated the photograph. Id. at 30. Brightwell does not recall Alamillo documenting 20 the confiscation on a cell search log, issuing a DOC 1517 to Bousley, or keeping the photograph. 21 Id. Brightwell does not recall placing the photograph into the evidence room. Id. [22] 2 Bousley contends there were two photographs. Alamillo states she confiscated one photograph. [23] Viewing the evidence in the light most favorable to Bousley, two photographs were confiscated. Regardless, this dispute is not material to the resolution of Bousley’s due process claim. 1 Bousley grieved the seizure of his photographs, contending they were not contraband and 2 noting that he was not given a DOC 1517. Id. at 10-11. In response to Bousley’s informal 3 grievance, Bousley was advised that the “shift supervisor was notified [about] the DOC 1517 not 4 being issued following the [seizure] of your property. Corrective action will be taken in the 5 future. Should you be in possession of any future [contraband] of this nature you will be issued a 6 notice of charges and a disciplinary hearing supervisor will determine the outcome of any charge 7 or sanction that may result.” Id. at 12. 8 Alamillo and Brightwell admit they searched Bousley’s cell, confiscated two 9 photographs, and failed to follow prison regulations by not filling out the required paperwork 10 and by failing to properly dispose of the photographs. They argue that because they failed to 11 follow procedure, their confiscation and loss or destruction of the photograph was unauthorized. 12 And they contend that where a state actor engages in the unauthorized loss or destruction of 13 property, but there is an available post-deprivation state remedy to address that unauthorized 14 deprivation, there is no due process violation. Bousley responds that the seizure was authorized 15 because it was done pursuant to the prison regulations regarding confiscation of contraband and 16 the defendants admit the photographs were properly seized as contraband. 17 The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State 18 deprive any person of life, liberty, or property, without due process of law.” “[A]n unauthorized 19 intentional deprivation of property by a state employee does not constitute a violation of the 20 procedural requirements of the Due Process Clause of the Fourteenth Amendment if a 21 meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517 , 22 533 (1984). Where the deprivation occurred “as a result of the unauthorized failure of agents of 23 the State to follow established state procedure,” then the deprivation is unauthorized within 1 Hudson’s meaning. Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled on other grounds by 2 Daniels v. Williams, 474 U.S. 327 (1986). Post-deprivation remedies are adequate in these 3 circumstances because “when deprivations of property are effected through random and 4 unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ 5 since the state cannot know when such deprivations will occur.” Hudson, 468 U.S. at 533 . 6 Here, no genuine dispute remains that Alamillo and Brightwell’s conduct constituted an 7 unauthorized failure to follow procedures in confiscating and disposing of Bousley’s 8 photographs. Although prison regulations allow for the confiscation of contraband, the 9 defendants were required to document the confiscation on a cell search log, provide Bousley 10 with a DOC 1517, and take the contraband to the evidence room. It is undisputed Alamillo and 11 Brightwell failed to follow these established procedures and there is no evidence that their failure 12 to do so was authorized. To the contrary, in response to Bousley’s grievance, Alamillo and 13 Brightwell’s shift supervisor was told of their failure to issue the DOC 1517 and Bousley was 14 advised that “[c]orrective action will be taken in the future.” ECF No. 24 at 12. The confiscation 15 and loss or destruction of the photographs without following the established procedures for 16 documenting the confiscation and preserving the property therefore were not authorized. 17 There also is no genuine dispute that adequate state law remedies were available. Nevada 18 Revised Statutes § 209.243 provides a means for prisoners to file an administrative claim “to 19 recover compensation for the loss of his or her personal property, property damage, personal 20 injuries or any other claim arising out of a tort alleged to have occurred during his or her 21 incarceration as a result of an act or omission of the Department or any of its agents, former 22 officers, employees or contractors.” Additionally, Bousley could have filed a civil action for a 23 state law tort. See Nev. Rev. Stat. § 41.0322 . 1 Bousley contends he should not be required to file a state law claim as an exclusive 2 remedy and he contends a small claims action would not allow him to litigate his due process 3 claim. But Bousley misunderstands the application of the above law. Because there is an 4 adequate post-deprivation state law remedy, Bousley has no due process claim to pursue in any 5 forum because the state has provided all the process that is due to him through the post- 6 deprivation remedy. Bousley also questions how a state court would value the photos, but he 7 does not explain how that valuation problem would be any different in this court. See Hudson, [8] 468 U.S. at 535 (rejecting a similar argument that because legal papers that were taken were 9 irreplaceable or had “intangible value,” a suit in tort would not fully compensate him: “If the loss 10 is ‘incompensable,’ this is as much so under [42 U.S.C.] § 1983 as it would be under any other 11 remedy.”). 12 In sum, Alamillo and Brightwell’s confiscation and loss or destruction of the photographs 13 were unauthorized because they failed to follow procedures regarding the documentation and 14 preservation of the alleged contraband. Additionally, Bousley had an adequate post-deprivation 15 state law remedy. As a result, he has no due process claim as a matter of law. I therefore grant 16 Alamillo and Brightwell’s motion for summary judgment and deny Bousley’s motion for 17 summary judgment on the due process claim. 18 B. First Amendment Retaliation 19 In his verified complaint, Bousley states that on April 19, 2016, two other inmates told 20 him that Alvarez told them that he had searched Bousley’s cell and that if Bousley had a 21 problem, Bousley should take it up with Alvarez and not his correctional officers. ECF No. 7 at 22 10. Bousley returned to his cell and found his personal property in disarray, but his cellmate’s 23 property was not disturbed. Id. When Sanchez and another correctional officer (named in the 1 complaint as John Doe) were questioned about it, John Doe stated “Do you want us to mess up 2 your cellmate’s stuff to make you feel better?” Id. at 10-11. Sanchez told Bousley to write a 3 grievance. Id. at 11. According to Bousley, Alvarez later told him that “people need to stop 4 writing grievances and [their] stuff won’t be messed up.” Id. Bousley alleges this conduct was 5 retaliation for his filing a grievance against Alamillo and Brightwell for the February 2016 6 incident. 7 The defendants argue they are entitled to summary judgment on this claim because 8 Bousley failed to exhaust his administrative remedies. Bousley contends he exhausted because 9 the defendants addressed the claim on the merits while resolving his second level grievance 10 related to the February 2016 incident. 11 Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought with 12 respect to prison conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies as 14 are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies prior 15 to filing a lawsuit is mandatory.3 Porter v. Nussle, 534 U.S. 516, 524 (2002). 16 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 548 17 U.S. 81, 90 (2006). That means the inmate must “use all steps the prison holds out, enabling the 18 prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). 19 The inmate thus must comply “with an agency’s deadlines and other critical procedural rules 20 because no adjudication system can function effectively without imposing some orderly structure 21 on the course of its proceedings.” Woodford, 548 U.S. at 90-91. But a prisoner exhausts his [23] 3 Although Bousley is no longer incarcerated, he filed the suit while he was still incarcerated, so he was required to exhaust. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). 1 administrative remedies “despite failing to comply with a procedural rule if prison officials 2 ignore the procedural problem and render a decision on the merits of the grievance at each 3 available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016). 4 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). 5 Consequently, the defendants bear the burden of proving the inmate failed to exhaust an 6 available administrative remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). 7 If the defendants do so, then the burden shifts to the inmate to show “there is something in his 8 particular case that made the existing and generally available administrative remedies effectively 9 unavailable to him by showing that the local remedies were ineffective, unobtainable, unduly 10 prolonged, inadequate, or obviously futile.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 11 2015) (quotation omitted). The defendants bear the “ultimate burden” of proving a failure to 12 exhaust. Id. 13 NDOC’s grievance process is governed by AR 740. ECF No. 24 at 110-22. That process 14 has three levels through which the inmate must proceed to exhaust: an informal grievance, first 15 level, and second level. Id. at 113-18. 16 The defendants have met their burden of showing Bousley failed to exhaust his 17 administrative remedies. Bousley did not file an informal or first level grievance related to the 18 April 2016 incident. See ECF No. 24 at 125-58 (showing Bousley’s grievance history, which 19 does not include a grievance for the April 2016 incident). He therefore did not properly exhaust 20 his administrative remedies for this claim. 21 Bousley does not argue or present evidence that he filed an informal and first level 22 grievance or that the grievance process was unavailable to him. Instead, Bousley relies on the 23 fact that he included facts about the April 2016 incident in his second level grievance related to 1 the February 2016 incident with Alamillo and Brightwell. See ECF No. 24 at 26. Bousley asserts 2 that the responding official resolved his second level grievance on the merits of the April 2016 3 incident, so he has exhausted this claim. 4 However, there is no evidence that the responding official, David Tristan, addressed 5 Bousley’s complaint about the April 2016 incident on the merits. Tristan’s second level 6 response states: 7 I am in receipt of your grievance and have reviewed your specific issues. The responses you were provided at the Informal and First Level have appropriately 8 addressed your concerns. Specifically, you have grieved an inappropriate search of your cell and confiscation of property. The officers indicate that the photos 9 that were taken were inappropriate and were [seized] as contraband. AR 422 dictates that inmate cells are to be searched on a random and consistent basis and 10 that any unauthorized items be removed. There is not sufficient evidence to indicate that the search was improper or that the items [seized] were authorized. 11 Staff were reminded to be respectful of inmate[’]s property and to strictly adhere to AR 422. There is no monetary award. Your grievance is denied. [12] 13 Id. at 144. Bousley contends that Tristan’s statement that staff was reminded to be respectful of 14 property is a reference to Bousley’s allegation that during the April 2016 incident, his cell was 15 left in disarray. But Bousley presents no evidence to support that conclusion. Rather, Tristan’s 16 response is focused on the February 2016 incident involving the confiscation of the photographs. 17 First, Tristan indicates that the responses to the informal and first level grievances were 18 appropriate. Because Bousley did not raise the April 2016 incident until the second level, 19 Tristan must be referring only to the February 2016 incident. Tristan also refers to “an” 20 inappropriate search and “the” search, not multiple searches. There is no indication, either from 21 the grievance response or from any other evidence, that Tristan addressed Bousley’s complaint 22 regarding the April 2016 incident on the merits. [23] 1 Bousley thus failed to exhaust his administrative remedies with respect to the April 2016 2\|incident. Consequently, I grant the defendants’ motion for summary judgment and deny 3] Bousley’s motion for summary judgment on the First Amendment retaliation claim. 4 Finally, Bousley filed an unauthorized amended complaint in which he added as a 5|| defendant correctional sergeant Mendez to replace the John Doe correctional officer in the First 6] Amendment retaliation claim. ECF No. 19. This complaint was never authorized or screened, 7|| and there is no proof of service for Mendez. Mendez has not appeared in this action. Bousley 8|| failed to exhaust this claim for any defendant, so I dismiss Mendez from this action because 9|| allowing Bousley to further pursue this claim would be futile. 10) 1. CONCLUSION 11 I THEREFORE ORDER that plaintiff Antoine Bousley’s motion for summary judgment 12|| (ECF No. 29) is DENIED. 13 I FURTHER ORDER that defendant correctional sergeant Mendez is dismissed from this 14] action. 15 I FURTHER ORDER that the defendants’ motion for summary judgment (ECF No. 23) GRANTED. The clerk of court shall enter judgment accordingly and close this case. 17 DATED this 18th day of February, 2020. ANDREW P. GORDON 19 UNITED STATES DISTRICT JUDGE