Thiele v. Hough et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RAYMOND A. THIELE,
Plaintiff,
vs.
JEREMY HOUGH, et al.,
Defendant.
Case No. 3:18-cv-00186-RRB
SUPPLEMENTAL ORDER AND
OPINION GRANTING, IN PART,
SUMMARY JUDGMENT
(Docket 39)
I. 	INTRODUCTION
This order supplements the Court’s opinion and order, dated June 24, 2021,
granting partial summary judgment in favor of Defendants.1 	The Court’s order reserved
judgment on three of Plaintiff’s claims, pending further briefing. 	Having received the
parties’ supplemental briefs, the Court GRANTS IN PART AND DENIES IN PART
summary judgment on Plaintiff’s remaining three claims.
II. 	BACKGROUND
Plaintiff, Raymond A. Thiele, a self-represented prisoner in the custody of
the Alaska Department of Corrections (“DOC”), filed this action based on claims of
unlawful mail interference pursuant to 42 U.S.C. § 1983, which permits a plaintiff to seek
1 Docket 47.
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relief for federal constitutional violations by officials acting under color of state law. The
Court granted summary judgment in favor of Defendants on all but three of Plaintiff’s
claims: 	that Defendants withheld a letter from his attorney (Adverse Action 8), that
Defendants delayed delivery of a letter from his attorney (Adverse Action 10), and that
Defendants opened a letter from his attorney outside of his presence (Adverse Action 12).
III. 	LEGAL STANDARD
A. 	Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The moving party bears the initial
burden of proof for showing that no fact is in dispute.2 	If the moving party meets that
burden, the non-moving party must present specific factual evidence demonstrating the
existence of a genuine issue of fact for trial.3 The non-moving party may not rely on mere
allegations or denials.4 	He must demonstrate that enough evidence supports the alleged
factual dispute to require a finder of fact to make a determination at trial between the
parties’ differing versions of the truth.5
When considering a motion for summary judgment, a court must accept as
true all evidence presented by the non-moving party, and draw “all justifiable inferences”
2 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
4 Id.
5 Id. (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)).
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in the non-moving party’s favor. 6 	To reach the level of a genuine dispute, the evidence
must be such “that a reasonable jury could return a verdict for the non-moving party.”7
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.”8 	If the evidence provided by the non-moving party is
“merely colorable” or “not significantly probative,” summary judgment is appropriate.9
A party asserting that a fact cannot be or genuinely is disputed must support
that assertion by:
(A) 	citing to particular parts of materials in the
record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) 	showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.10
B. 	Exhaustion of Remedies Under the Prison Litigation Reform Act (PLRA)
The Prison Litigation Reform Act (“PRLA”) requires prisoners to exhaust
their administrative remedies before filing suit. 	“The PLRA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.”11 The
6 Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
7 Id. at 248.
8 Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
9 Anderson, 477 U.S. at 249.
10 Fed. R. Civ. P. 56(c)(1).
11 Porter v. Nussle, 534 U.S. 516, 532 (2002).
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PLRA requires proper exhaustion, which “demands compliance with an agency’s deadlines
and other critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.”12
The burden is upon the defendant to prove that there was an available
administrative remedy and that the prisoner did not exhaust that available administrative
remedy.13 Once the defendant has carried that burden, the burden shifts to the prisoner to
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.14 	The ultimate burden of proof remains with the defendant.15 	If undisputed
evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a
defendant is entitled to summary judgment.16 But, if material facts are disputed, summary
judgment should be denied and the district judge, rather than a jury, should determine the
facts in a “preliminary proceeding.”17
Defendants have shown that there was available to Plaintiff an internal
grievance and appeal system for inmates that requires: 	(1) an attempt for informal
resolution through verbal communication or an RFI; 	(2) a formal grievance utilizing
Form 808.03C that must be filed “[w]ithin 30 calendar days from the date the incident
occurred or from when the prisoner has knowledge of the incident;” (3) a grievance appeal
12 Woodford v. Ngo, 548 U.S. 81, 90–91 (2006).
13 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc).
14 Id.
15 Id.
16 Id.
17 Id.
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also using Form 808.03C; and (4) a letter to the Standards Administrator for “final
administrative” review.18
IV. 	DISCUSSION
A. 	Withheld Letter from Plaintiff’s Attorney (Adverse Action 8)
Plaintiff claims that Defendants withheld a letter his attorney mailed him on
March 20, 2017. A memorandum from his attorney confirms he sent Plaintiff a letter on
that date.19 Defendants assert that the prison never received the letter and provide a heavily
redacted copy of the mail room log.20
But, regardless of the substance of Plaintiff’s claim, Defendants show that
Plaintiff did not file a Form 808.03C grievance within the time limit. Although Plaintiff
asserts that he did not learn of the letter until June 15, 2017, Plaintiff’s attorney mailed him
a copy of the transmittal memo on May 15, 2017, and references “your correspondence
dated April 30, 2017.”21 	This transmittal memo appears to be the same letter that forms
the basis of Adverse Action 10. 	Plaintiff alleges that the prison received this letter on
May 16, 2017, but did not deliver it to him until May 19. 	Thus, even viewed in a light
most favorable to Plaintiff, this establishes that he had concrete knowledge of the missing
letter on May 19, 2017. 	Therefore, prison regulations required Plaintiff to file a
Form 808.03C grievance by June 18, 2017.
18 Docket 15-2 at 30–32.
19 Docket 48-2 at 1–2.
20 Docket 39 at 23; Docket 39-9.
21 Id. at 1.
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Because uncontroverted evidence shows Plaintiff did not file a grievance
until July 6, 2017, the State has carried its burden to show that Plaintiff did not exhaust his
administrative remedy. Furthermore, because Plaintiff has not shown that the remedy was
unavailable to him, summary judgment therefore must be granted on Adverse Action 8.
B. 	Delayed Delivery of Letter from Plaintiff’s Attorney (Adverse Action 10)
Plaintiff claims that the prison received a letter from his attorney on May 16,
2019, but did not deliver it to him until May 19.22 Defendants do not appear to dispute the
delay’s factual basis.23 	Instead, Defendants point out that Plaintiff did not submit a
Form 808.03C grievance form until July 6, 2017. 	Because prison regulation 808.03
requires prisoners to file formal grievances within 30 days, Plaintiff needed to file his
grievance by June 18.
Because uncontroverted evidence shows Plaintiff did not file a grievance
until July 6, 2017, the State has carried its burden to show that Plaintiff did not exhaust his
administrative remedy. Furthermore, because Plaintiff has not shown that the remedy was
unavailable to him, summary judgment therefore must be granted on Adverse Action 10.
C. 	Letter from Plaintiff’s Attorney Opened Outside His Presence (Adverse
Action 12)
Plaintiff claims that on June 6, 2017, he received a letter from his attorney
that Defendants had opened outside his presence. Defendants concede that Plaintiff filed
his grievance over this incident within the 30-day time limit, but contend that “this
22 As described above, this appears to be the letter from Plaintiff’s attorney containing a copy of
the memo confirming his letter of March 20.
23 See Docket 39; Docket 50.
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grievance was properly screened out because the plaintiff failed to follow [the Department
of 	Corrections’ 	Policies 	& 	Procedures].”24 	Specifically, 	Defendants 	contend 	that
Plaintiff’s grievance was improper because it “attempted to grieve multiple issues in one
grievance form” and contained “more than two pages of additional pages of narrative.”25
Considering the importance of Plaintiff’s 	“protected First Amendment
interest in having properly marked legal mail opened only in [his] presence,”26 the Court
finds Defendants’ arguments unavailing. 	First, the supplied copy of the Department of
Corrections’ Policies & Procedures contains no rule requiring formal grievances to only
grieve one incident at a time.27 Instead, they provide that a grievance may be screened if
it “raises unrelated issues that should be presented in separate grievances.”28 	Although
Plaintiff’s grievance involved two or three separate incidents, the incidents involved related
issues surrounding the treatment of Plaintiff’s legal mail. Defendants fail to explain why
Plaintiff 	should 	have 	presented 	two 	or 	more 	separate 	grievances 	to 	exhaust 	his
administrative remedies.
Second, the Court doubts whether the two-page narrative limit for grievances
is among the “critical procedural rules” with which the PLRA “demands compliance.”29
The limit is not listed among the Department’s Policies & Procedures’ list of reasons for
24 Docket 50 at 6.
25 Id.
26 Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017).
27 See Docket 15-2 at 30–34.
28 Id. at 32.
29 Woodford, 548 U.S. at 90–91.
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which grievances will be screened.30 	Considering the importance of the constitutional
interest asserted, the Court concludes that these technical deficiencies do not satisfy the
Defendants’ burden to demonstrate that Plaintiff failed to exhaust his administrative
remedies. Accordingly, summary judgment is not warranted on Adverse Action 12.
V. 	CONCLUSION
For the foregoing reasons, it is hereby ordered as follows:
1. 	Defendants’ 	Motion 	for 	Summary 	Judgment 	at 	Docket 	39 	is
GRANTED in part. Plaintiff’s claims regarding withholding of a letter from his attorney
(Adverse Action 8) and delayed delivery of a letter from his attorney (Adverse Action 10)
are DISMISSED WITH PREJUDICE.
2. 	Defendants’ Motion for Summary Judgment is DENIED in part with
respect to Plaintiff’s claim regarding the opening of a letter from his attorney outside of his
presence (Adverse Action 12).
3. 	The following Defendants are not named in Adverse Action 12 and
are hereby dismissed: Zane Nighswonger, Lt. Jason Hamilton, Security Sgt. Tom Elmore,
Sgt. Kevin Kelly, and John/Jane Does #8 and #10.
4. 	The Court grants leave for Plaintiff to amend his Complaint to replace
the pseudonym “John Doe #11” with the identity provided by the State in discovery.
Should he do so, Plaintiff need only reallege the substance of Adverse Action 12 from his
Third Amended Complaint. 	Any Amended Complaint should be on this Court’s form,
30 Docket 15-2 at 32–33.
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which is being provided with this order. Plaintiff is reminded that an amended complaint
replaces the prior complaint in its entirety.31 If Plaintiff chooses to amend his Complaint,
he is directed to file it within 30 days. Otherwise, the matter will go forward on the Third
Amended Complaint, and John Doe #11 will be dismissed.
5. 	The Clerk of Court is directed to send Plaintiff form PS01, with
“FOURTH AMENDED” written above the title “Prisoner’s Complaint Under the Civil
Rights Act 42 U.S.C. § 1983.”
IT IS SO ORDERED this 23rd day of September, 2021, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
31 Local Civil Rule 15.1; see also Docket 12.
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