'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, Appellant,

v. 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; HOWARD ANDERSON; SCOTT FRAKES; MICHAEL HATHAWAY; KENNETH QUINN; A. ROBINSON; WILLIAM MILLER; HAROLD ARCHIBALD; RON TAGGERTDEFFINGAUGH; UNKNOWN OTHERS; COMMUNITY PARTNERS OR SPOUSES OF EACH NAMED DEFENDANT; DEPT. OF CORRECTIONS ("DOC"), Respondents. No. 66151-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 8, 2013

Becker, J. —When prison staffallegedly retaliated against inmate Allan Parmelee forfiling grievances, he abandoned the grievances, did not grieve the 

### retaliatory acts, and instead broughtthis action for violations of his First Amendment and civil rights and forvarious state torts. The superiorcourt dismissed the federal claims with prejudice due to Parmelee's failure to exhaust available administrative remedies in the prison grievance system. The courtNo. 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 DepartmentofCorrections transferred inmate Parmelee from Stafford Creek Correction Center to Monroe Correctional 

### Complex. According to Parmelee, the transferwas due in part to his persistent 

### complaintsagainst prison staff,which "'burnedout staff and wore themdown.'" Twodays after arriving at Monroe, Parmelee filed two "emergency" grievances. One alleged that a guard threatened him by "mean-mugging, 

### threatening words, demeanorand clenched posture" in an "efforttoblock, deter and harass me over my legal related activities." The otheralleged that two 

### guards threatened Parmelee's life, health, and safety "in order toblock any infraction defense and witness statement requests." The grievance coordinator 

### ruled in both cases thatthe grievances did not meet criteria foremergency 

### grievances and had to be resubmitted with morespecificfacts. Parmeleedid not resubmit the grievances. Instead, inJune 2010, Parmelee filed this action against Monroe and 

### Departmentpersonnel forassault, defamation, negligent training and 

### supervision, theft, malicious harassment, andretaliatoryviolations of hisFirst

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Amendment and civil rights. Parmelee's verified complaint, which was supported by a declaration and otherevidence, alleged that Monroe staffretaliated against him forfiling the two grievances bytransferring him to administrative segregation, assaulting him while en route, and taking and destroying his shoes. He also alleged thatthey defamed him byfalsely accusing him ofmisconduct. The complaintcontained five counts. Count 1 alleged thatthe retaliation 

### forfiling grievances violated his FirstAmendment and civil rights. Count2 alleged thatthe assault by prison staff lacked any legitimate penological basis and was "a pretextto 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 thatthe respondents' actions and inaction violated RCW 9A.36.083 (in addition to criminal penalty, victim ofharassment 

### maybring civil action) and RCW 10.14.020 (defining "unlawful harassment" and "course of conduct"), took advantage of his disabilityas an inmate, and constituted malicious harassment. 

### The complaintfurther 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 regularlypursues staff accountability for wrongs committed against prisoners, [and] such is the basis for this case." (Emphasis added.) Parmelee claimed prison stafftargeted 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 itunderCR 

### 12(b)(6). They supported their motionwith a declaration from the grievance 

### programmanagerfor the Department, a declarationfrom a tort claims investigator, and copies of the two grievances underlying Parmelee's action. 

### Respondents argued that Parmelee's state law claimsshould be dismissed due to his noncompliancewith the 60-day notice required for claimsagainstthe State and that his federal claims were barred because Parmelee had not exhausted his administrative remedies. 

### The superior court dismissed Parmelee's state law claimswithout 

### prejudice and his federal claimswith prejudice. The court denied Parmelee's motion for reconsideration. He appeals.
STANDARD OF REVIEW 

### Although respondents moved to dismiss under CR 12(b), it isundisputed that the court considered materials outside the pleadings. The submission and 

### consideration ofextraneous materials by either party normally converts a CR 

### 12(b)(6) motionto onefor summaryjudgmentunderCR 56. Habermanv. Wash. Public Power Supply Svs.. 109 Wn.2d 107, 121, 744 P.2d 1032, 750 P.2d 254

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### (1987), appeal dismissed, 448 U.S. 805 (1988). Butifthe court can say that the plaintiffs would not be entitled to relief no matter what facts are proven within the context ofthe claim, the motion remains one under CR 12(b)(6). Haberman, 109 Wn.2d at 121. Insuch a case, the presentation ofextraneous evidence is immaterial. Haberman, 109 Wn.2d at 121. 

### In determining whethera 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 complaintisfactually sufficient inWashington iffacts could be 

### established tosupporttheallegations in thecomplaint. 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 inthe complaint. Dismissal isproperonly ifthere is nogenuine issue of material fact and the moving party is entitled to judgment as a matter oflaw. 

### CR56(c). Review under either CR 12(b)(6) or CR 56 is de novo. San Juan County V.NoNewGasTax. 160Wn.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 adismissal orderon any basissupported bytherecord. LaMon v. Butler. 112Wn.2d 193, 200-01, 770 P.2d 1027. cert, denied. 493 U.S. 814 (1989). For the reasons setforth below, we conclude the superiorcourt did not err in

-5-No. 66151-5-1/6 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 forthe 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 courtto 

### consider matters outside the pleadings. Hethen submitted several declarations and otherevidence and proceeded to recite the principles governing summary 

### judgment. Heplainly had noticethat the motion to dismissmightbe decided under CR 56.
FAILURE TO EXHAUST REMEDIES 

### An inmate may notfile suitagainstthe state or itsemployees 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 offailure 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 plaintiffto show that the administrative remedies wereunavailable." Albino v. Baca. 697 F.3d 1023, 1031 (9th Cir. 2012).

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It is undisputed that Parmelee never resubmitted his rejected grievances and did not attemptto grieve the alleged retaliation forthose 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 ofgrievances 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 inpart thatto demonstrate the unavailability ofadministrative remedies, an inmate must 

### show (1) that threats orintimidation actually diddeter him from lodging a 

### grievance and that (2) the threats orintimidation would deter a reasonable inmate of ordinaryfirmnessfrom lodging a grievance. Turner. 541 F.3d at 1085. Thus, ifan inmate isthreatened or assaulted forfiling prison grievances, 

### administrative remedies may be rendered unavailable ordefendants 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 (10thCir. 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 filegrievances after the alleged acts of retaliation at Monroe. An inmate cannot invoke the unavailability defense or equitable 

### estoppel ifhe or she continues tofile grievances after the administrative 

### remedies allegedly becameunavailable. Kasiem v. Switz. 756F. Supp. 2d570,

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577 (S.D.N.Y. 2010). Parmelee did not dispute in his declarations below that he filed three more grievances at Monroe shortly afterthe alleged retaliatory acts in May 2010. Inhis responsive declaration, dated September 20, 2010, Parmelee merely stated: "I believe Ihave no 'current' grievances pending
. . . and ifany
are pending, Iam being retaliated against for doing so." He also alleged thatthe "incident" inthis case "has taught me that grievances may never be filed about any staffmisconduct" without risking retaliation. But he did not allege that he refrained from filing such claims in Monroe afterthe 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 inthe 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 matterof law, to satisfy the Turner requirementthat he was actually deterred fromfiling further grievances. His claimthat 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 proofrequirements for the elements of a FirstAmendment 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 FirstAmendment rights. They do not address the requirements for the threshold questions ofexhaustion and unavailability. Parmelee argues inthe alternative that administrative remedies were unavailable because the alleged retaliatory acts are not grievable underthe Department's policies. Respondents contend this argument is raised for the first time on appeal. Parmelee cites portions ofthe record purportedly demonstrating his preservation ofthe argument, butthe citations do not support his claim. We do not consider issues thatwere not raised on summaryjudgment 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 inthe grievance program, personal safety, and the application or lack of application of policies, rules, and procedures. On theirface, these policies allowed Parmelee to grieve the alleged acts of retaliation. Although there is also an official list ofnongrievable issues, nothing
on the listprecluded Parmelee from grieving the actions and incidents at issue 

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

### well as grievances he laterfiled at Stafford Creek for staff misconduct and retaliatorysegregation, were notdeclared 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 thatthey did not meet the criteria for an emergency grievance.

NO BASIS FOR EQUITABLE ESTOPPEL Parmelee contends respondents are equitably estopped from asserting any barto this action because ofpositions the Departmenttook in response to a personal restraint petition he filed inJune 2010. In its response to the petition, the attorney general argued on behalfofthe Departmentthatthe presentcivil 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 ifother remedies available to him were inadequate under the circumstances. RAP 16.4(d). Because the present civil action 

### provided Parmelee withanother 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 thatthe petition should be dismissed because he was no longer subjectto 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 inconsistentwith 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 belowthat this action should be dismissed. We rejected the same argument indenying Parmelee's requestfor sanctions inthe personal restraint proceedings. We stated that "[c]ontrary to Parmelee's baseless claim, there is nothing inconsistent, inappropriate or dishonest inthe arguments presented bythe attorney to the court ineither proceeding." We adhere to that ruling here. The attorney general's argument inthe personal restraint proceeding was that the present action provided Parmelee a remedy and that he had not demonstrated that itwas inadequate. That argument was not inconsistentwith the attorney general's argument below thatthis action should be dismissed. In addition, Parmelee does not explain how he relied to his detriment on the attorney general's position inthe personal restraint proceeding. 

### He alleges no actof reliance, and he cannotclaim 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 thatthis action should be dismissed. DISMISSAL WITH PREJUDICE Parmelee contends the court erred indismissing his federal claims with 

### prejudice. Although dismissals for failure to exhaust remedies should normally be without prejudice, they can be with prejudice ifit 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 ofthe underlying incidents to file a grievance. He did not meet this deadline. Although he contends the Department may waive this time limit, the portion ofthe record he cites allows a waiver only "ifthe offender presents documentation of his/her attempts to resolve a conflictthrough a contractor's review process and allows the coordinatorto photocopy the documentation for the grievance record." That exception is not applicable here.

STATE LAW CLAIMS Parmelee contends the court erred indismissing his state law claims. But the trial court dismissed those claims without prejudice. A dismissal without prejudice is not appealable as a matter of rightunless its effect is to determine the action and prevent a finaljudgmentor 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 ofhis state law claims is therefore not appealable. INJUNCTIVE AND DECLARATORY RELIEF Parmelee contends the court erred indismissing his requests for 

### declaratory and injunctive reliefunder 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 ofthose claims is not appealable. To the extent Parmelee seeks an injunction and declaratory relief for violations offederal law, his request was properly dismissed for failure to exhaust administrative remedies. In general, ifan adequate administrative remedy is available, itmust be pursued before a court ofequity willintervene. Jeanes v. U.S. Dep't of Justice. 231 F. Supp. 2d 48 (D.D.C. 2002); see also 15 Washington Practice: Civil Procedure: Civil44:10, at 247 (2d ed. 2009). And under 42 U.S.C. § 1997e(a), exhaustion is required regardless ofthe relief sought by a prisoner and regardless ofthe 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 oflaw, his claims for injunctive relief were properly dismissed. We deny Parmelee's motion to supplementthe 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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