Derello #037292 v. Thornell et al

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WO KAB
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Douglas Wayne Derello, Jr.,
Plaintiff,
v.
Ryan Thornell, et al.,
Defendants.
No. CV-24-03205-PHX-MTL (JFM)
ORDER
Plaintiff Douglas Wayne Derello, Jr., who is currently confined in the Arizona State
Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 71) and Motion for
Summary Disposition (Doc. 94) and Plaintiff’s “Motion to Inform the Court of Plaintiff
Status” (Doc. 76), which the Magistrate Judge construed as a Motion seeking injunctive
relief (Doc. 78).
I. Background
On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated
an Eighth Amendment claim against Defendant Deputy Warden Suckle based on Plaintiff’s
allegations that Plaintiff notified Suckle of a rat infestation at the prison, but Suckle failed
to act. (Doc. 18.) The Court dismissed the remaining claims and Defendants. (Id.)
Defendant seeks summary judgment based on Plaintiff’s failure to properly exhaust
available administrative remedies. The Court informed Plaintiff of his rights and
obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en
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banc) (Doc. 75). Plaintiff was granted several extensions of time to file his response, but
Plaintiff did not file a response. (See Docs. 91, 93.) Plaintiff also did not respond to
Defendant’s Motion for Summary Disposition (Doc. 94) despite the Court’s Order to
respond (Doc. 95).
II. Plaintiff’s Motion (Doc. 78)
In his Motion, Plaintiff asserts that he was moved to the Meadows Unit on
December 23, 2025 and was assigned an aide due to his disability, but he does not have
access to a computer. (Doc 76.) Plaintiff requests that the Court order the Arizona
Department of Corrections, Rehabilitation, and Reentry (ADCRR) to provide Plaintiff a
laptop, which would “expedite Plaintiff’s filings an[d] cut down on his need of complaints
to the courts.” (Id.) In Response, Defendant asserts that there is a procedure for requesting
access to the computers in the library and the librarian has explained to Plaintiff how to
schedule computer access, but he has never requested such access. (Id.) In Reply, Plaintiff
asserts that he wants a laptop, other prisoners are allowed laptops, the restroom near the
library is not ADA compliant, and the ADA compliant restroom is too far away from the
library.
“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”
Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy
never awarded as of right”).
A plaintiff seeking injunctive relief under Rule 65 of the Federal Rules of Civil
Procedure must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer
irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. When the
government opposes a preliminary injunction, “[t]he third and fourth factors of the
preliminary-injunction test—balance of equities and public interest—merge into one
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inquiry.” Porretti, 11 F.4th at 1047. The “balance of equities” concerns the burdens or
hardships to a prisoner complainant compared with the burden on the government
defendants if an injunction is ordered. Id. The public interest mostly concerns the
injunction’s impact on nonparties rather than parties. Id. (citation omitted). Regardless,
“[i]t is always in the public interest to prevent the violation of a party’s constitutional
rights.” Id. (citation omitted).
Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction,
injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very
serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits
of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017)
(quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879
(9th Cir. 2009)). Further, under the Prison Litigation Reform Act, injunctive relief must
be narrowly drawn and be the least intrusive means necessary to correct the harm. 18
U.S.C. § 3626(a)(2); see Gilmore v. Cal., 220 F.3d 987, 999 (9th Cir. 2000).
Here, Plaintiff has made no showing that he is entitled to injunctive relief. Plaintiff’s
request for a laptop is unrelated to the claim in his operative complaint, and Plaintiff has
not shown that he is being denied access to the courts because he does not have a laptop.
See Pac. Radiation Oncology, LLC v. Queen’s Med. Center, 810 F.3d 631, 636 (9th Cir.
2015) (“[w]hen a plaintiff seeks injunctive relief based on claims not pled in the complaint,
the court does not have the authority to issue an injunction”); see also Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (a party seeking injunctive relief
must establish a relationship between the claimed injury and the conduct asserted in the
complaint); see also Prince v. Schriro, CV-08-1299-PHX-SRB, 2009 WL 1456648, at *4
(D. Ariz. May 22, 2009) (unless a claim concerns access to the courts, the Plaintiff must
show a nexus between the relief sought and the claims in the lawsuit.).
Moreover, the Record shows that Plaintiff has an aide and is able to request
computer access. Although Plaintiff argues that he needs a laptop because the computers
are not close enough to an ADA restroom, Plaintiff raised this argument for the first time
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in reply and Defendant was not given a chance to respond. Indeed, Plaintiff’s Motion was
premised on his claim that he was “not given access to a computer,” but Defendant has
shown that Plaintiff does have computer access. (Doc. 76 at 1.)
For the foregoing reasons, Plaintiff’s Motion will be denied.
III. Defendant’s Motion for Summary Judgment1
In his Motion for Summary Judgment, Defendant asserts that Plaintiff did not
properly exhaust his available administrative remedies. Defendant asserts that Plaintiff did
not submit any grievances regarding the alleged rat infestation, which allegedly arose
between August 13, 2024 and October 3, 2024. Defendant asserts that although Plaintiff
did not exhaust the grievance process, between June 2024 and June 2025, Plaintiff
submitted 31 tablet letters to unit administration, including four complaints about Deputy
Warden Suckle, and three specifically concerning the alleged rat infestation.
Defendant asserts that although Plaintiff complained in his Complaint that he could
not exhaust due to threats and intimidation, those claims are undermined by Plaintiff’s
inmate letters complaining about the same conduct. Defendant asserts that during
Plaintiff’s deposition, he admitted that Defendant Suckle never interfered or prevented
Plaintiff from filing a grievance, no officers threatened or obstructed Plaintiff from filing
a grievance, and Plaintiff asserted that he did not exhaust because grievances can provoke
hostility and retaliation by other prisoners and he perceived administrative inaction
regarding other prisoners’ complaints. Defendant asserts that Plaintiff’s generalized,
unsupported allegations about fear of exhausting did not excuse Plaintiff’s failure to
exhaust.
. . . .
. . . .
1 Although Defendant seeks summary disposition based on Plaintiff’s failure to
respond to the Motion for Summary Judgment, summary disposition is not appropriate.
See, e.g., Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (Rule 56 does not
permit a court to grant summary judgment by default). Accordingly, the Motion for
Summary Disposition will be denied.
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A. Legal Standards
1. Summary Judgment
A court must 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.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
movant bears the initial responsibility of presenting the basis for its motion and identifying
those portions of the record, together with affidavits, if any, that it believes demonstrate
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not
produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,
1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts
to the nonmovant to demonstrate the existence of a factual dispute and that the fact in
contention is material, i.e., a fact that might affect the outcome of the suit under the
governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable
jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th
Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its
favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however,
it must “come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
citation omitted); see Fed. R. Civ. P. 56(c)(1).
At summary judgment, the judge’s function is not to weigh the evidence and
determine the truth but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw
all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited
materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).
. . . .
. . . .
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2. Exhaustion
Under the Prison Litigation Reform Act, a prisoner must exhaust “available”
administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a);
Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926,
934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in
accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006).
Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523
(2002), regardless of the type of relief offered through the administrative process, Booth v.
Churner, 532 U.S. 731, 741 (2001).
The defendant bears the initial burden to show that there was an available
administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d
1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must
demonstrate that applicable relief remained available in the grievance process). Once that
showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in
fact, exhausted administrative remedies or “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.” Albino, 747 F.3d at 1172. The
ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate
if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a
failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a).
B. Facts2
Plaintiff was transferred to ASPC-Lewis, Barchey Unit on June 21, 2024, and
resided there until June 12, 2025. (Doc. 72 ¶ 5.)
2 Because Plaintiff did not file a response or controverting statement of facts, the
Court will consider Defendant’s supported facts undisputed unless they are clearly
controverted by Plaintiff’s first-hand allegations in the verified Complaint or other
evidence on the record. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (Where the
nonmovant is a pro se litigant, the Court must consider as evidence in opposition to
summary judgment all the nonmovant’s contentions set forth in a verified complaint or
motion).
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1. Department Order 802—the Grievance Procedure
Department Order (DO) 802, Inmate Grievance Procedure, with an effective date of
March 2, 2022, governed ADCRR’s inmate grievance procedure at all times relevant to this
lawsuit. (Id. ¶ 6.) DO 802 provides that prisoners may use the grievance process for issues
related to any aspect of institutional life or conditions of confinement that directly and
personally affects the prisoner grievant, including actions of staff. (Id. ¶ 8.) Prisoners
receive a written and oral explanation of the inmate grievance procedure during intake and
as part of the orientation process when they transfer to a new facility. (Id. ¶ 9.) The inmate
grievance procedure for non-medical grievances is a four-step process: (1) if a prisoner is
unable to resolve his complaint through informal discussions with staff, the first step of the
grievance process is for the prisoner to submit an Informal Complaint on an Informal
Complaint Resolution Form to the CO IV grievance coordinator in his unit; (2) if the
prisoner is dissatisfied with the response to his Informal Complaint, he has five workdays
from his receipt of the written response to initiate the second step of the grievance process:
submitting a Formal Grievance on the Inmate Grievance Form to the CO IV Grievance
Coordinator, for the Deputy Warden’s decision; (3) A prisoner may appeal the decision of
the Deputy Warden to the appropriate Assistant Director on an Inmate Grievance Appeal
form; (4) The fourth step is for the prisoner to submit an Inmate Grievance Appeal to the
ADCRR General Counsel regarding the Assistant Director’s decision. (Id. at ¶¶ 11-27.)
The ADCRR considers the decision of the General Counsel or designee to be final and to
constitute exhaustion of all remedies within the Department. (Id. ¶ 28.) ADCRR records
show that the process was widely used by prisoners at Barchey Unit in 2024 through 2025.
(Id. ¶ 30.)
2. Plaintiff’s Filings at Barchey
CO IV Moises Vargas has reviewed the Barchey Unit grievance logs from June 2024
through June 2025 for all processed grievances. (Id. ¶ 31.) The logs do not show that any
grievance documentation was filed by Plaintiff between June 2024 and June 2025. (Id. ¶
32.) Between June 2024 and June 2025, Plaintiff sent 31 tablet letters to unit
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administration. (Id. ¶ 35.) Seven of those tablet letters were directed to Deputy Warden
Evans and four of the seven letters to Deputy Warden Evans were about rats. (Id. ¶ 35.)
Three letters were about Evans after an alleged rat bite. (Id. ¶ 36.) On August 13, 2024,
Plaintiff wrote a tablet letter regarding rodents that was not addressed to any particular
staff:
This morning (8-13-24), not a mouse but a large Size’s Rat ran
out of the building. There ha[ve] been complaints by prisoners
here of food, eaten into, ID cards chewed on, etc. I have
medical equipment and cords that can’t help but be low to the
ground. This administration is doing nothing to avert the
roaming of these rats, that could bite, or, damage my medical
devices. It could be as simple as, putting door brushes across
the bottom of the door to stop the problem. Thanks.
(Id. ¶ 37.) The response from Captain Vargas to Plaintiff regarding the August 13th letter
was:
This is absolutely not accurate. We have had pest control out
here just a week ago. There has been no signs of “Rats” what
they did find was evidence of what is called desert pack rats,
which are bigger in size however are not “rats” we are in the
middle of their living environment and they are a protected
species therefore can not eradicate. We are putting bush guards
on the doors they have been ordered.
(Id. ¶ 38.) On August 21, 2024, Plaintiff sent a tablet letter to Deputy Warden Suckle about
Officer Hobbs’ “lack of training/suspicious acts” regarding the passing out of legal mail.
Id. ¶ 39.) On September 6, 2024, Plaintiff sent a letter to Deputy Warden Suckle, stating:
DW Suckle: This morning 9-06-24, a large desert rat was in 5
HU control room on top of the diet trays eating the food. It was
immediately brought to the attention of officer Ortiz, that was
sitting in the control room. The Capt., some weeks ago claimed
brush guards were being purchased to be placed at the bottom
of the doors. That would prevent the desert rats from entering
the Housing Units. Thanks
(Id. ¶ 40.) Deputy Warden Suckle’s response was, “Pest control has been notified. Projects
notified to add door sweeps.” (Id. ¶ 41.) On September 16, 2024, Plaintiff wrote to Deputy
Warden Suckle, stating he “would appreciate your approval to replace my Ray Band
glasses” as Plaintiff accidentally sat on them. (Id. ¶ 42.) Deputy Warden Suckle informed
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Plaintiff that approvals for such items must go through the captain and medical. (Id.) On
September 25, 2024, Plaintiff sent an inmate letter to Deputy Warden Suckle that stated:
DW Suckle: Twice I have informed Admin/You, about the Rat
infestation. You Claimed “Projects would be told to add door
sweeps.” Not yet, however staff are allowed sticky traps for
offices/control rooms. But, not areas where prisoners live. On
late night of 9-24-24 early morning 9-25-24, a large rat in my
area ate holes in one of my shirts. DW you are personally
responsible should I are any other Prisoner is bitten. Your
cameras should show last nights rat enter this pod. Can we get
sticky traps?
(Id. ¶ 43.) On October 11, 2024, Plaintiff again wrote about the rats:
DW Suckle: It’s my understanding because I was attacked by
a rat. That I had been telling you/Capt, about for weeks. And
you all done nothing about the infestation, the viruses they
carry I am not aware of. But, I am now being warn to be
cautious of reprisal by you/or Capt. I am not the only prisoner
that’s been attacked here, and even your staff have complained
about these Desert Rats. And yet, I must be the one to be
cautious, why is that?!
(Id. ¶ 44.) On November 13, 2024, Plaintiff again wrote to Suckle, stating that Suckle was
aware of the bed bug infestation and that “I am going to pursue legal action against you.
Because your minimal actions, are to[o] late to help.” (Id. ¶ 45.) On November 15, 2024,
Plaintiff wrote to Suckle, complaining that he was denied “rec” because he “had to be on
the rec field and not the black top,” which he previously had access to. (Id. ¶ 46.) He
stated, “You as a DW pass down no training for ADA’s.” (Id.)
In addition to the tablet communications directly to Deputy Warden Suckle, Plaintiff
wrote three more letters referencing him. (Id. ¶ 47.) On March 23, 2025, Plaintiff wrote
directly to CO IV Lynch and stated, “You may have good intentions, but the toxic
corruption/indifference here will make you impervious just like DW Suckle.” (Id. ¶ 48.)
On April 16, 2025, Plaintiff requested that the Administration ensure access to store ice and
claimed that Suckle “has cold beverages.” (Id. ¶ 49.) On May 12, 2025, Plaintiff wrote
that that he “recently expected law suit against Suckle.” (Id. ¶ 50.) On August 12, 2024,
Plaintiff wrote:
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This Administration uses H/U 6 A/C as favoritism and
hookup’s for approval. I spoke to the Capt., and Lt. Gilg
whereby, I gave the Lt., a kite. When he ridiculed me, in front
of other Inmates, “what do you want other moved out of 6 to
become a medical building.” This yard staff (some) has a
tendency to say things, to place Inmates at jeopardy among
other Inmates. His words to my kite was totally
unnecessary/antagonizing. That requested for a move to 6 for
medical reasons. My Cpap/apnea.
(Id. ¶ 52.) After the alleged rat bite, Plaintiff continued to communicate to staff via the
tablet on November 13, 2024, November 15, 2024, February 28, 2025, March 11, 2025,
March 23, 2025, April 15, 2025, April 16, 2025, April 22, 2025, May 12, 2025, and June
2, 2025. (Id. ¶ 53.)
In his October 2025 deposition, Plaintiff testified that when he arrived at Barchey,
he was told by a sergeant “they don’t do any grievance filings here in Lewis Complex or
Barchey.” (Id. ¶ 54.) When this was said, only one inmate was “in the proximity of being
able to hear” the sergeant. (Id. ¶ 55.) That inmate transferred out of the Barchey Unit that
night. (Id.) Plaintiff testified that he “sort of got about this stigma of always trying to file
against staff” and he was “warned against doing that” by other prisoners when he was at
the Cook Unit. (Id. ¶ 56.) At the Barchey Unit, there were prisoners from the Cook Unit
who “frown up on grievances as a thing that brings about trouble” and Plaintiff felt like
filing grievances “had an ugly connotation to it.” (id. ¶ 57.) Plaintiff believes that “threats
were implied” because other prisoners had been with him at the Cook Unit. (Id. ¶ 58.)
Plaintiff thinks he was transferred to the Barchey Unit because of filing grievances. (Id. ¶
59.) Plaintiff claims that he did not want to file grievances after his transfer to Barchey.
(Id. ¶ 60.) Plaintiff never engaged in the grievance process while at Barchey. (Id. ¶ 61.)
Plaintiff testified that he did not want “to get caught up in nothing else about my
filing grievances . . . I just feel vulnerable in that type of setting and knowing that a
grievance is one of the things that could trigger that setting against me, I was staying away
from it altogether.” (Id. ¶ 62.) Plaintiff also blames the prison administrators’ inaction
about other prisoners’ complaints as part of his reason for not filing grievances. (Id. ¶ 63.)
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Plaintiff admits that Deputy Warden Suckle never did anything to prevent him from filing
a grievance. (Id. ¶ 64.) Plaintiff contends that inmate-on-inmate violence would occur
when inmates filed grievances as a way for inmates to gain favor with prison officials. (Id.
¶ 65.) When asked for specifics regarding inmate-on-inmate violence, Plaintiff admitted
that he did not know the reason why other inmates were involved in physical altercations
during his time at the Barchey Unit. (Id. ¶ 66.) Plaintiff alleges that because he was warned
by other inmates to watch himself regarding retaliation from Vargas and Suckle, he felt that
he was going to be retaliated against. (Id. ¶ 78.) Plaintiff alleges that Deputy Warden
Suckle disclosed Plaintiff’s tablet communications to unknown inmates. (Id. ¶ 82.)
Plaintiff never heard Deputy Warden Suckle say anything about Plaintiff. (Id. ¶ 83.)
C. Discussion
Here, it is undisputed that there was an available administrative remedy and Plaintiff
did not exhaust it. The burden therefore shifts to Plaintiff to show that the remedy was
effectively unavailable. In his deposition,3 Plaintiff contended that the administrative
remedy was effectively unavailable because he feared other prisoners’ hostility against him
for filing grievances, he feared retaliation from administration for filing his grievances, and
he believed it would be futile because prison administrators would not act on the
grievances.
Although a failure to exhaust may be excusable based on a threat of retaliation, the
inmate must show that (1) the threat of retaliation actually deterred the inmate from lodging
a grievance or pursuing a particular part of the process, and (2) “the threat is one that would
deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or
pursuing part of the grievance process that the inmate failed to exhaust.” McBride v. Lopez,
807 F.3d 982, 987 (9th Cir. 2015) (citation omitted). Where there is a mere allegation of
fear based on a previous hostile interaction between a prisoner and prison officials, such
3 In his Complaint, Plaintiff indicated he “[d]id not grievance d[ue] to threats and
intim[i]dations.” (Doc. 1 at 5.)
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allegation, by itself, is not sufficient to show that a prisoner of ordinary firmness would not
have pursued the grievance process. Id. at 988.
Here, Plaintiff’s allegations about a generalized fear about using the grievance
process are not sufficiently specific enough to demonstrate that any alleged threats would
deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance. The
Record shows that many prisoners filed grievances while at Barchey Unit. Moreover,
Plaintiff has not explained why he felt comfortable filing inmate letters, but felt threatened
when using the grievance process itself. For the foregoing reasons, Plaintiff has not met
his burden of showing that the grievance process at Barchey was effectively unavailable.
Accordingly, the Motion for Summary Judgment will be granted.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion
for Summary Judgment (Doc. 71) and Motion for Summary Disposition (Doc. 94) and
Plaintiff’s “Motion to Inform the Court of Plaintiff Status” (Doc. 76).
(2) Plaintiff’s “Motion to Inform the Court of Plaintiff Status” (Doc. 76) is
denied.
(3) Defendant’s Motion for Summary Disposition (Doc. 94) is denied.
(4) Defendant’s Motion for Summary Judgment (Doc. 71) is granted. This
action is dismissed without prejudice for failure to properly exhaust available
administrative remedies. The Clerk of the Court must enter Judgment accordingly and
close this case.
Dated this 12th day of May, 2026.
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