                                                                           'i!   L-;-n

                                                                COURT OF APPEALS OiV I
                                                                 STATE OF WASKINGTOM

                                                                 2013 APR-8 AH 9^0




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALLAN PARMELEE,
                                                  No. 66151-5-1
                     Appellant,
      v.                                          DIVISION ONE

LISA HOWE, SUSAN COLLINS;
LEANNE SIMMONS; JIM ASIN; BRANDI
YOURKOSKI; VICQUI HEUETT; DREW
WOOD; DAN PACHOLKE; STEVEN
MORGAN; RAYMOND ANKRUM; (fnu)
GOMEZ; (fnu) VAN VALKENBURG;
(fnu) HEUER; M. ACREE ELDON VAIL;                 UNPUBLISHED OPINION
HOWARD ANDERSON; SCOTT
FRAKES; MICHAEL HATHAWAY;                         FILED: April 8, 2013
KENNETH QUINN; A. ROBINSON;
WILLIAM MILLER; HAROLD
ARCHIBALD; RON TAGGERT-
DEFFINGAUGH; UNKNOWN OTHERS;
COMMUNITY PARTNERS OR
SPOUSES OF EACH NAMED
DEFENDANT; DEPT. OF
CORRECTIONS ("DOC"),

                      Respondents.



       Becker, J. —When prison staff allegedly retaliated against inmate Allan

Parmelee for filing grievances, he abandoned the grievances, did not grieve the

retaliatory acts, and instead brought this action for violations of his First

Amendment and civil rights and for various state torts. The superior court

dismissed the federal claims with prejudice due to Parmelee's failure to exhaust

available administrative remedies in the prison grievance system. The court
No. 66151-5-1/2




dismissed his state claims without prejudice for failure to comply with statutory

notice requirements. Because the dismissal of Parmelee's state claims without

prejudice is not appealable and because the remainder of his appeal lacks merit,

we affirm.



                                      FACTS

       On May 10, 2010, the Department of Corrections transferred inmate

Parmelee from Stafford Creek Correction Center to Monroe Correctional

Complex. According to Parmelee, the transfer was due in part to his persistent

complaints against prison staff, which "'burned out staff and wore them down.'"

       Two days after arriving at Monroe, Parmelee filed two "emergency"

grievances. One alleged that a guard threatened him by "mean-mugging,

threatening words, demeanor and clenched posture" in an "effort to block, deter

and harass me over my legal related activities." The other alleged that two

guards threatened Parmelee's life, health, and safety "in order to block any

infraction defense and witness statement requests." The grievance coordinator

ruled in both cases that the grievances did not meet criteria for emergency

grievances and had to be resubmitted with more specific facts. Parmelee did not

resubmit the grievances.

       Instead, in June 2010, Parmelee filed this action against Monroe and

Department personnel for assault, defamation, negligent training and

supervision, theft, malicious harassment, and retaliatory violations of his First


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Amendment and civil rights. Parmelee's verified complaint, which was supported

by a declaration and other evidence, alleged that Monroe staff retaliated against

him for filing the two grievances by transferring him to administrative segregation,

assaulting him while en route, and taking and destroying his shoes. He also

alleged that they defamed him by falsely accusing him of misconduct.

      The complaint contained five counts. Count 1 alleged that the retaliation

for filing grievances violated his First Amendment and civil rights. Count 2

alleged that the assault by prison staff lacked any legitimate penological basis

and was "a pretext to send Parmelee a message that he should not file

grievances of any kind against staff." Count 3 alleged that prison staff conspired

to make false statements about Parmelee with malicious, vindictive, and

retaliatory intent. Count 4 alleged that prison staff took and destroyed his shoes

without authority. Count 5 alleged that the respondents' actions and inaction

violated RCW 9A.36.083 (in addition to criminal penalty, victim of harassment

may bring civil action) and RCW 10.14.020 (defining "unlawful harassment" and

"course of conduct"), took advantage of his disability as an inmate, and

constituted malicious harassment.

       The complaint further alleged that grievance procedures were effectively

unavailable due to the Department's pervasive "policy, custom, habit and routine

to take adverse actions against any prisoner who regularly pursues staff

accountability for wrongs committed against prisoners, [and] such is the basis for

this case." (Emphasis added.) Parmelee claimed prison staff targeted him for

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retaliation because of his aggressive use of prison grievances and his legal and

journalistic activities "revealing corruption and abuse" within the Department.

The complaint requested various forms of relief, including monetary damages

and injunctive and declaratory relief.

       Respondents answered the complaint and moved to dismiss it under CR

12(b)(6). They supported their motion with a declaration from the grievance

program manager for the Department, a declaration from a tort claims

investigator, and copies of the two grievances underlying Parmelee's action.

Respondents argued that Parmelee's state law claims should be dismissed due

to his noncompliance with the 60-day notice required for claims against the State

and that his federal claims were barred because Parmelee had not exhausted his

administrative remedies.

       The superior court dismissed Parmelee's state law claims without

prejudice and his federal claims with prejudice. The court denied Parmelee's

motion for reconsideration. He appeals.


                             STANDARD OF REVIEW

       Although respondents moved to dismiss under CR 12(b), it is undisputed

that the court considered materials outside the pleadings. The submission and

consideration of extraneous materials by either party normally converts a CR

12(b)(6) motion to one for summary judgment under CR 56. Haberman v. Wash.
Public Power Supply Svs.. 109 Wn.2d 107, 121, 744 P.2d 1032, 750 P.2d 254



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No. 66151-5-1/5




(1987), appeal dismissed, 448 U.S. 805 (1988). But if the court can say that the

plaintiffs would not be entitled to relief no matter what facts are proven within the

context of the claim, the motion remains one under CR 12(b)(6). Haberman, 109

Wn.2d at 121. In such a case, the presentation of extraneous evidence is

immaterial. Haberman, 109 Wn.2d at 121.

       In determining whether a complaint fails to state a claim for relief under

CR 12(b), we apply a less exacting factual requirement than the federal courts.

While federal courts require facts demonstrating the "facial plausibility" of a claim,

Aschcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868

(2009), a complaint is factually sufficient in Washington if facts could be
established to support the allegations in the complaint. McCurrv v. Chew Chase

Bank. FSB. 169Wn.2d96, 101, 233 P.3d 861 (2010).

       Under CR 56, on the other hand, the focus is on the evidence, not the

allegations in the complaint. Dismissal is proper only if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.

CR 56(c). Review under either CR 12(b)(6) or CR 56 is de novo. San Juan
County V.NoNewGasTax. 160 Wn.2d 141, 164, 157 P.3d 831 (2007), Hubbard

v. Spokane County. 146 Wn.2d 699, 706, 50 P.3d 602 (2002). And we may

uphold a dismissal orderon any basis supported by the record. LaMon v. Butler.
112Wn.2d 193, 200-01, 770 P.2d 1027. cert, denied. 493 U.S. 814 (1989). For

the reasons set forth below, we conclude the superior court did not err in



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dismissing Parmelee's claims under either CR 56 or the CR 12(b)(6) standard

discussed in Haberman.

       Before addressing the superior court's ruling, we note that Parmelee

claims he lacked notice of any conversion of the CR 12(b)(6) motion to a CR 56

motion. This claim is raised for the first time on appeal and is therefore waived.

RAP 2.5(a). The claim is also meritless. In his response to the motion to

dismiss, Parmelee acknowledged that respondents were asking the court to

consider matters outside the pleadings. He then submitted several declarations

and other evidence and proceeded to recite the principles governing summary

judgment. He plainly had notice that the motion to dismiss might be decided

under CR 56.



                       FAILURE TO EXHAUST REMEDIES

       An inmate may not file suit against the state or its employees until he or

she has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a);

Woodford v. Nqo. 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006);

see Lavmon v. Dep't of Natural Res. 99 Wn. App. 518, 522-28, 994 P.2d 232

(2000). It is the defendant's burden to raise and prove the defense of failure to

exhaust remedies. Wvatt v. Terhune. 315F.3d 1108, 1119 (9th Cir.), cert

denied. 540 U.S. 810 (2003). "Once the defense meets its burden, the burden

shifts to the plaintiff to show that the administrative remedies were unavailable."

Albino v. Baca. 697 F.3d 1023, 1031 (9th Cir. 2012).



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No. 66151-5-1/7




       It is undisputed that Parmelee never resubmitted his rejected grievances

and did not attempt to grieve the alleged retaliation for those grievances. He

thus failed to exhaust his administrative remedies. He contends, however, that

those remedies were effectively unavailable. Respondents disagree, pointing to

Parmelee's continued filing of grievances despite his claims of a "pervasive"

policy of retaliation at the Monroe and Stafford Creek facilities. Both parties cite

Turnery. Burnside. 541 F.3d 1077, 1085 (11th Cir. 2008). Turner held in part

that to demonstrate the unavailability of administrative remedies, an inmate must

show (1) that threats or intimidation actually did deter him from lodging a

grievance and that (2) the threats or intimidation would deter a reasonable

inmate of ordinary firmness from lodging a grievance. Turner. 541 F.3d at 1085.

Thus, if an inmate is threatened or assaulted for filing prison grievances,

administrative remedies may be rendered unavailable or defendants may be

estopped from claiming they were not exhausted. Hemphill v. New York. 380

F.3d 680 (2d. Cir 2004); Tuckel v. Grover. 660 F.3d 1249 (10th Cir. 2011);

Turner. 541 F.3d at 1085; Macias v. Zenk. 495 F.3d 37 (2d Cir. 2007); Lavmon.

99 Wn. App. at 525.

       We conclude that Parmelee has not satisfied the first Turner prong

because he continued to file grievances after the alleged acts of retaliation at

Monroe. An inmate cannot invoke the unavailability defense or equitable

estoppel if he or she continues to file grievances after the administrative
remedies allegedly became unavailable. Kasiem v. Switz. 756 F. Supp. 2d 570,

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No. 66151-5-1/8




577 (S.D.N.Y. 2010). Parmelee did not dispute in his declarations below that he

filed three more grievances at Monroe shortly after the alleged retaliatory acts in

May 2010. In his responsive declaration, dated September 20, 2010, Parmelee

merely stated: "I believe I have no 'current' grievances pending . . . and ifany

are pending, I am being retaliated against for doing so." He also alleged that the

"incident" in this case "has taught me that grievances may never be filed about

any staff misconduct" without risking retaliation. But he did not allege that he

refrained from filing such claims in Monroe after the assault and segregation.

Nor did he dispute that he filed grievances at Stafford Creek, concerning staff

misconduct occurring in October 2010. Those grievances, which are in the

record before us, include allegations against guards for threats, harassment, and

retaliatory placement in segregation.

       Because it is undisputed that Parmelee continued to file grievances at

Monroe and Stafford Creek after the alleged retaliatory acts and despite the

alleged pervasive policy of retaliation, his allegations fail, as a matter of law, to

satisfy the Turner requirement that he was actually deterred from filing further

grievances. His claim that administrative remedies were unavailable due to a

climate of retaliation fails under either CR 12(b) or CR 56.

       Parmelee's reliance on Brodheim v. Cry. 584 F.3d 1262 (9th Cir. 2009),

and Rhodes v. Robinson. 408 F.3d 559 (9th Cir. 2005) is misplaced. Those

cases concern proof requirements for the elements of a First Amendment

retaliation claim. They stand for the proposition that an inmate's exhaustion of

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remedies cannot be used to defeat his claim that adverse acts chilled the

exercise of his First Amendment rights. They do not address the requirements

for the threshold questions of exhaustion and unavailability.

       Parmelee argues in the alternative that administrative remedies were

unavailable because the alleged retaliatory acts are not grievable under the

Department's policies. Respondents contend this argument is raised for the first

time on appeal. Parmelee cites portions of the record purportedly demonstrating

his preservation of the argument, but the citations do not support his claim. We

do not consider issues that were not raised on summary judgment or are raised

for the first time on appeal. RAP 9.12; RAP 2.5(a).

       Furthermore, Parmelee's argument fails as a matter of law. The

Department's grievance program manual provides that inmates may grieve

"incidents, policies or practices" that affect an inmate, including the actions of

employees, retaliation for participation in the grievance program, personal safety,

and the application or lack of application of policies, rules, and procedures. On

their face, these policies allowed Parmelee to grieve the alleged acts of

retaliation. Although there is also an official list of nongrievable issues, nothing

on the list precluded Parmelee from grieving the actions and incidents at issue

here. Significantly, the Monroe grievances underlying Parmelee's complaint, as

well as grievances he later filed at Stafford Creek for staff misconduct and

retaliatory segregation, were not declared nongrievable despite the presence of

check boxes for that resolution on the decision forms. The primary reason given


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for not processing the grievances was that they did not meet the criteria for an

emergency grievance.


                    NO BASIS FOR EQUITABLE ESTOPPEL

       Parmelee contends respondents are equitably estopped from asserting

any bar to this action because of positions the Department took in response to a

personal restraint petition he filed in June 2010. In its response to the petition,

the attorney general argued on behalf of the Department that the present civil

action and the petition sought relief for the same retaliatory conduct. The

attorney general argued that Parmelee could obtain relief by means of his

personal restraint petition only if other remedies available to him were inadequate

under the circumstances. RAP 16.4(d). Because the present civil action

provided Parmelee with another remedy and because there was no showing that

this remedy was inadequate, the attorney general maintained that the petition

should be dismissed. The attorney general also argued that the petition should

be dismissed because he was no longer subject to unlawful restraint. This court

dismissed Parmelee's petition on the ground that he failed to show unlawful

restraint. Order of Dismissal, No. 66394-1, filed December 13, 2010.

       Parmelee's equitable estoppel claim is meritless. The elements of

equitable estoppel include an act inconsistent with a claim later asserted and

detrimental reliance on that act. Lavmon. 99 Wn. App. at 525. Parmelee

contends the attorney general's argument in the personal restraint proceeding


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that this civil rights action provided another available remedy is inconsistent with

the attorney general's arguments below that this action should be dismissed. We

rejected the same argument in denying Parmelee's request for sanctions in the

personal restraint proceedings. We stated that "[c]ontrary to Parmelee's

baseless claim, there is nothing inconsistent, inappropriate or dishonest in the

arguments presented by the attorney to the court in either proceeding." We

adhere to that ruling here. The attorney general's argument in the personal

restraint proceeding was that the present action provided Parmelee a remedy

and that he had not demonstrated that it was inadequate. That argument was

not inconsistent with the attorney general's argument below that this action

should be dismissed. In addition, Parmelee does not explain how he relied to his

detriment on the attorney general's position in the personal restraint proceeding.

He alleges no act of reliance, and he cannot claim any injury arising from the

dismissal of his personal restraint petition since, as noted above, the petition was

dismissed on other grounds.

       The trial court did not err in rejecting, as a matter of law, Parmelee's claim

that respondents were equitably estopped from arguing that this action should be

dismissed.

                          DISMISSAL WITH PREJUDICE

       Parmelee contends the court erred in dismissing his federal claims with

prejudice. Although dismissals for failure to exhaust remedies should normally

be without prejudice, they can be with prejudice if it is too late for the inmate to

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exhaust. Walker v. Thompson. 288 F.3d 1005, 1009 (7th Cir. 2002); Berry v.

Kerik. 366 F.3d 85 (2d Cir. 2004). Parmelee had 20 working days from the date

of the underlying incidents to file a grievance. He did not meet this deadline.

Although he contends the Department may waive this time limit, the portion of the

record he cites allows a waiver only "if the offender presents documentation of

his/her attempts to resolve a conflict through a contractor's review process and

allows the coordinator to photocopy the documentation for the grievance record."

That exception is not applicable here.


                               STATE LAW CLAIMS

       Parmelee contends the court erred in dismissing his state law claims. But

the trial court dismissed those claims without prejudice. A dismissal without

prejudice is not appealable as a matter of right unless its effect is to determine

the action and prevent a final judgment or to discontinue the action. RAP

2.2(a)(3): Munden v. Hazelriqq. 105 Wn.2d 39, 44, 711 P.2d 295 (1985). The

dismissal in this case did not effectively determine the action or prevent a final

judgment. In fact, Parmelee has refiled his complaint under a new cause

number. The dismissal of his state law claims is therefore not appealable.

                   INJUNCTIVE AND DECLARATORY RELIEF

       Parmelee contends the court erred in dismissing his requests for

declaratory and injunctive relief under RCW 7.24 and RCW 7.40. As noted

above, however, Parmelee's state law claims were dismissed without prejudice



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and refiled under a new cause number. To the extent his requests for injunctive

or declaratory relief involve state law claims, the dismissal of those claims is not

appealable.

       To the extent Parmelee seeks an injunction and declaratory relief for

violations of federal law, his request was properly dismissed for failure to exhaust

administrative remedies. In general, if an adequate administrative remedy is

available, it must be pursued before a court of equity will intervene. Jeanes v.

U.S. Dep't of Justice. 231 F. Supp. 2d 48 (D.D.C. 2002); see also 15

Washington Practice: Civil Procedure: Civil 44:10, at 247 (2d ed. 2009).

And under 42 U.S.C. § 1997e(a), exhaustion is required regardless of the relief

sought by a prisoner and regardless of the relief offered by the process. Booth v.

Churner. 532 U.S. 731. 741. 121 S. Ct. 1819, 149 L Ed. 2d 958 (2001). The

exhaustion requirement applies to all prisoner suits relating to prison life. Porter

v. Nussle. 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).

Accordingly, because Parmelee did not exhaust his administrative remedies and

his claim that the remedies were unavailable fails as a matter of law, his claims

for injunctive relief were properly dismissed.

       We deny Parmelee's motion to supplement the record with matters that

were not before the court below. RAP 9.11. We also deny his request for costs

and expenses on appeal.




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      Affirmed.




WE CONCUR:




  AV^,,/V.                ^rcQUrd^c.




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