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Jones v. Nevin

United States District Court, D. Nevada

August 11, 2014

DWIGHT NEVIN, et al., Defendants.


ANDREW P. GORDON, District Judge.

Before the Court is Defendants Dwight Nevin, Harold Wickham, and Julio Calderon's Motion to Dismiss or in the Alternative, Motion for Summary Judgment. (Dkt. #17.) For the reasons below, the motion is granted as a Motion for Summary Judgment.


Plaintiff Johnny Lee Jones III is an inmate at High Desert State Prison ("HDSP"). Nevin is the prison's warden, Calderon is a chaplain, and Wickham is an associate warden (collectively, "Defendants"). (Dkt. #1 at 2.) Jones converted to Judaism on April 20, 2013. ( Id. at 4.) After failed attempts to receive a kosher meal, he filed the Complaint at issue on July 3, 2013. Jones admits that he did not "attempt[] to resolve the dispute stated in this action by... exhausting available administrative grievance procedures" because he was "in imminent danger.'" ( Id. at 8.)

Jones alleges in Count I of his Complaint that Defendants violated his First and Eighth Amendment rights by denying Jewish inmates access to kosher meals. He alleges that High Desert State Prison's common fare menu ("CFM"), which it provides as its kosher option, is purposefully "overly redundant and distasteful" so as to discourage inmates from practicing Judaism. He alleges that the CFM is not kosher, and that the food lacks indicators such as kosher symbols or an affidavit stating the meals are kosher. He requests to be placed on a kosher diet, and compensatory damages of $100 per day starting from April 20th, 2013 for the pain and suffering caused by the innutritious meals.

In Count II, Jones alleges that forcing Jewish inmates to fill out Document from 3060 ("Form 3060") to apply for Jewish meals violates their First Amendment right to exercise their religion. He complains that Defendants, none of whom is Jewish, have final authority on who qualifies to receive kosher meals. He claims that requiring inmates to submit Form 3060 unfairly excludes Jewish inmates who lack the mental capacity to complete it.


A. Jones's Failure to Respond to the Motion

As a preliminary matter, Jones has not responded to the instant motion. Local Rule 7-2(d) provides that "[t]he failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." "Failure to follow a district court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); see, e.g., Roberts v. United States of America, No. 2:01-cv-1230-RLH-LRL, 2002 WL 1770930 (D. Nev. June 13, 2002). However, before dismissing a case for a plaintiff's failure to follow local rules or for failure to prosecute, the district court must weigh five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic sanctions; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). "Public policy favoring disposition of cases on their merits counsels strongly against dismissal. This is particularly important in civil rights cases.'" Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)). Mindful of potential prejudice to a pro se incarcerated plaintiff and the public policy favoring disposition of civil rights cases on their merits, I offer the below analysis of the motion's merits.

B. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act ("PLRA"), inmates seeking relief from prison conditions must exhaust available administrative remedies prior to bringing any suit challenging prison conditions. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions... until such administrative remedies as are available are exhausted."); Porter v. Nussle, 534 U.S. 516, 524 (2002) ("exhaustion is mandatory... unexhausted claims cannot be brought in court"). "[T]he prison's requirements... define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). However, an inmate is required to exhaust only available remedies - remedies available "as a practical matter, " "capable of use, " and "at hand." Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005) (quoting Brown v. Croak, 312 F.3d 109, 113 (3d Cir.2002)).

"[T]he exhaustion question in PLRA cases should be decided as early as feasible." Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014); see also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) ("no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted").

A motion for summary judgment is generally the appropriate vehicle for raising the plaintiff's failure to exhaust administrative remedies because "failure to exhaust is an affirmative defense under the PLRA, and... inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) ("[A] motion for summary judgment, as opposed to an unenumerated Rule 12(b) motion, [is the proper procedural device] to decide exhaustion...."). "But in those rare cases where a failure to exhaust is clear from the face of the complaint, a defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a claim." Jones, 549 U.S. at 215-16; Albino, 747 F.3d at 1168-69 ("[S]uch cases will be rare because a plaintiff is not required to say anything about exhaustion in his complaint."); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam) ("[A]ffirmative defenses may not be raised by motion to dismiss, but this is not true when, as here, the defense raises no disputed issues of fact." (citation omitted)).

Jones's Complaint is a stock form for civil rights complaints pursuant to 42 U.S.C. § 1983. Section D, question 3 of this form asks: "Have you attempted to resolve the dispute stated in this action by seeking relief from the proper administrative officials, e.g., have you exhausted available administrative grievance procedures?" (Dkt. #1 at 8.) Jones checked "No, " and wrote as his reason: "Grievance pending. Plaintiff needs injunctive relief immediately[.] Plaintiff is in Imminent Danger'." Id. Thus, ...

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