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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jeremy Pinson,

Plaintiff,

v. 

Unknown Ivey, et al.,

Defendants.

No. CV-18-00152-TUC-DCB

ORDER 

On October 3, 2019, the Court granted summary judgment and entered Judgment 

for Defendants. On October 16, 2019, the Plaintiff filed a Motion for Reconsideration. 

She points out what she believes to be an inconsistencey in the Court’s findings and 

complains that the Court improperly disregarded her affidavit evidence supporting her 

claims. (Motion (Doc. 41)).

The Plaintiff points out that the Court’s finding that she “failed to obtain the 

appropriate form, the BP-9” contradicts the Court’s acknowledgment of Plaintiff’s claim, 

supported by sworn affidavit, that she filed the BP-9 form and gave it to Daniel Flores. 

(Motion (Doc. 41) (citing Order (Doc. 39) at 6-7).

To be clear, the Court found the Plaintiff’s admission to be dispositive, as follows: 

In her declaration supporting her Response to Defendants’ Motion for 

Summary Judgment, Plaintiff expressly states that when she was told her 

complaint could not be resolved informally, she took the informal resolution 

form (BP-8) and “attached [it] to a Request for Administrative Remedy [BP9] on or about March 20, 2018 and handed it to my unit Counselor Daniel 

Flores for processing and submission to the Warden.” 

(Order (Doc. 39) at 6 (citing Response, P Decl. (Doc. 35) at 4 ¶4.)
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The Court granted the Defendants’ Motion for Summary Judgment for 

failure to exhaust because the Plaintiff, by her own admission, did not complete the 

PB-9 form because she did not submit a completed PB-9 form. She only completed 

the BP-8 form and attached it to the BP-9 form. She admittedly did not complete 

the requisite BP-9 form with all the requisite identifying information placed in the 

spaces provided on the form, did not date and sign the Request. (Order (citing 28 

C.F.R. 542.14(c)(2-4)). Attaching the PB-8 form to the PB-9 form, the Plaintiff 

failed to submit the requisite BP-9 to make a Request for Administrative Remedy. 

Id. citing § 542.14(a).

This admission was the basis of the Court’s ruling, not the Court’s alleged 

error in disregarding the Plaintiff’s affidavit that she submitted the BP-9 form, and 

the BOP did not respond to her BP-9 request, therefore, excusing her failure to 

exhaust administrative remedies.

The Plaintiff is correct that the Court must treat declarations of prisoners 

equal to declarations of prison officials. The Plaintiff should, however, take equal 

note of the well-established evidentiary principal that the production of weak 

evidence when strong is available can lead to the conclusion that the strong would 

have been adverse. Biestek v. Berryhill, 139 S. Ct. 1148, 1160 (2019) (citing 

Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939)). While the 

Plaintiff’s failure to keep copies of her alleged administrative claim was not 

dispositive this time, it might be in the future. The prison was also required to 

generate a receipt for a Request for Administrative Remedy, and Plaintiff failed to 

tender this evidence. Here, the Court required the Defendants to produce the record 

for all administrative complaints filed by the Plaintiff for the relevant time frame, 

which reflected no such complaint was made against Ivey. In the future, the Plaintiff 

should take more care to adhere to these readily available means to support claims 

of exhaustion. Again, the Court did not base its decision on this lack of evidence 
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because by the Plaintiff’s own admission, she did not properly submit a BP-9 form 

to make a Request for Administrative Remedy.

Accordingly,

IT IS ORDERED that the Motion for Reconsideration (Doc. 41) is 

DENIED.

Dated this 28th day of October, 2019.