Sir Giorgio Clardy v. Judy Gilmore ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIR GIORGIO SANFORD CLARDY, No. 17-35435
Plaintiff-Appellant, D.C. No. 2:15-cv-01241-CL
v.
MEMORANDUM*
JUDY GILMORE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted July 9, 2019**
Portland, Oregon
Before: FERNANDEZ, TASHIMA, and OWENS, Circuit Judges.
Sir Giorgio Clardy appeals from the district court’s grant of summary
judgment for ten Oregon Department of Corrections (“ODOC”) officials
(“Defendants”). As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in part, and remand.
1. Clardy argues that the district court erred in granting Defendants’ motion
to stay discovery pending the resolution of their summary judgment motion. We
disagree. Granting the stay was within the district court’s discretion. See Alaska
Cargo Transp., Inc. v. Alaska R.R. Corp., 5 F.3d 378, 383 (9th Cir. 1993).
Defendants reasonably sought to stay discovery under Federal Rule of Civil
Procedure 26(c) because it would be an unnecessary burden and expense before
threshold, dispositive issues, including exhaustion, were resolved. See Fed. R. Civ.
P. 26(c)(1) (permitting a district court to, “for good cause, issue an order to protect
a party or person from . . . undue burden or expense”). Nor has Clardy “show[n]
what material facts would be discovered that would preclude summary judgment.”
Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988).
2. Next, Clardy alleges that Defendants filed an untimely answer, thus
waiving their affirmative defenses. We also reject this argument. The district
court allowed Defendants to waive service by filing a form that stated: “If you
comply with this request and return the waiver to the court, no summons will be
served. The action will then proceed as if you had been served on the date the
waiver is filed.” Accordingly, the Defendants’ filing of the waiver form triggered
the 21-day deadline to file their answer, which they then complied with. See Fed.
R. Civ. P. 12(a)(1)(A)(i).
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3. Lastly, Clardy argues that the district court erred in granting summary
judgment for Defendants. Although the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e, requires “compliance with [a prison’s] deadlines and other critical
procedural rules,” Woodford v. Ngo, 548 U.S. 81, 90 (2006), that requirement is
excepted if an administrative remedy is unavailable, see Ross v. Blake, 136 S. Ct.
1850, 1858 (2016). We review de novo the district court’s grant of summary
judgment for failure to exhaust administrative remedies. See Williams v. Paramo,
775 F.3d 1182, 1191 (9th Cir. 2015).
First, we affirm the district court’s grant of summary judgment for
Defendants Bell, Bugher, Gilmore, Miller, Mooney, Peters, and Waggoner. Clardy
never filed a grievance related to the incident at issue naming these seven
Defendants, as is required by the ODOC’s procedural rules. See Or. Admin. R.
291-109-1040(5) (requiring a prisoner to file a separate grievance for each
individual involved in an incident).
Next, we turn to the district court’s grant of summary judgment for
Defendants Jones and Steiner. As to these two defendants, Clardy initiated
ODOC’s administrative review procedure. However, his grievances were rejected
because he had exceeded the maximum number of initial grievances that a prisoner
can file per week and month. Although we have concerns about whether this
policy, Or. Admin. R. 291-109-0180(1)(a), renders an administrative remedy
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unavailable to ODOC prisoners, it did not bar Clardy from exhausting. Clardy had
the opportunity to file these grievances before exceeding the limit. As such, based
on the facts presented, we affirm the district court’s dismissal of Clardy’s federal
claims against Defendants Jones and Steiner.
Finally, we consider the district court’s grant of summary judgment for
Defendant Jost. Here, too, Clardy initiated ODOC’s administrative review
process, filing a grievance specifically naming Defendant Jost. But ODOC
rejected this grievance because Clardy had already filed a notice of tort claim
related to the same incident. ODOC prohibits filing a notice of tort claim before
filing an initial grievance, Or. Admin. R. 291-109-0140(3)(g), or at any point
during the administrative review process, Or. Admin. R. 291-109-0160(4). Yet,
because Oregon law requires a prisoner to file a notice of tort claim within 180
days of the alleged injury, Or. Rev. Stat. Ann. § 30.275(2)(b), a prisoner in
Clardy’s position might have to choose between fully exhausting or timely filing a
notice of tort claim. As such, we reverse the grant of summary judgment for
Defendant Jost and remand for the district court to consider in the first instance
whether ODOC’s policy prohibiting the simultaneous filing of a grievance and
notice of tort claim deprived Clardy of an administrative remedy.1
AFFIRMED in part; REVERSED in part; and REMANDED.
1
We deny Clardy’s motion to transport. Dkt. No. 51.
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Each party shall bear its own costs.
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