The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendant's Motion to Dismiss for failure to exhaust administrative remedies (Docket No. 17), and Defendant's Motion to Stay a scheduling order pending the outcome of the Motion to Dismiss (Docket No. 19). In his Opposition Response (Docket No. 21), Plaintiff asks the Court to stay Defendants' Motion to Dismiss pending the completion of requests for discovery pertinent to the Motion. Plaintiff also requests that the Court issue a subpoena duces tecum for records (Docket No. 20). The Court has reviewed the pleadings and now enters the following Order denying Plaintiff's request to stay, granting Defendants' Motion to Dismiss (Docket No. 17) without prejudice, which renders moot Defendants' Motion to Stay Scheduling Order (Docket No. 21) and Plaintiff's Request to issue a subpoena duces tecum (Docket No. 20).
Plaintiff Daniel Dixon is a prisoner in the custody of the Idaho Department of Correction (IDOC), currently incarcerated at the Idaho State Correctional Institution (ISCI). From September 12, 2006 through December 20, 2007, Plaintiff was incarcerated at the Idaho Correctional Center (ICC), a facility operated by Defendant Correction Corporation of America, Inc. According to Defendants, Plaintiff filed two grievances related to the allegations in this lawsuit, but failed to fully exhaust either grievance. Defendants now move for the Court to dismiss Plaintiff's lawsuit for lack of exhaustion. Memorandum in Support of Motion (Docket No. 17-1) at 11. Plaintiff argues that there are insufficient facts before the Court to support dismissal, because discovery is incomplete. Plaintiff requests that the Court stay consideration of the Motion to Dismiss, pending completion of discovery. Plaintiff's Opposition (Docket No. 21).
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prisoner is required to exhaust all of his administrative remedies within the prison system before he can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). "Proper" exhaustion of administrative remedies is required, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). The Bock Court noted that the important policy concern behind requiring exhaustion is that it "allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.
Where there is an "informal" and "relative[ly] simpl[e]" prison grievance system, prisoners must take advantage of it before filing a civil rights complaint. Woodford v. Ngo, 548 U.S. at 103. In Woodford v. Ngo, the prisoner had filed his grievance within six months of the incident at issue, rather than within fifteen days as required by the California Prison grievance system. Id. at 86-87. The Supreme Court rejected the Ninth Circuit's determination that the prisoner "had exhausted administrative remedies simply because no such remedies remained available to him." Id. at 87.
Failure to exhaust remedies is an affirmative defense that should be brought as an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 119 (9th Cir. 2002); see also Jensen v. Knowles, 621 F.Supp.2d 921 (E.D. Cal. 2008). Therefore, the Court will consider Defendants' Motion as a motion to dismiss, rather than a motion for summary judgment on the merits. In deciding a motion to dismiss for failure to exhaust administrative remedies, a court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). The proper remedy, where a prisoner has failed to exhaust non-judicial remedies, is dismissal of the claim without prejudice. Wyatt, 315 F.3d at 1120.
B. Grievance Process of the Idaho Department of Correction (IDOC)
The IDOC's grievance process consists of three stages. Affidavit of Chester Penn (Docket No. 17-3) (Penn Affidavit) at ¶ 4. First, any inmate with a concern must fill out an Offender Concern Form, addressed to the staff person "most capable of responding to," and where appropriate, resolving, the inmate's issue. Id. at ¶ 7. If the issue cannot be resolved informally through the use of a Concern Form, the inmate must then file a Grievance Form. Id. at ¶ 8. Until November 28, 2007, the Grievance Form had to be submitted within 15 days of the incident giving rise to the grievance. Since that date, the time for filing a Grievance Form has been increased to 30 days. Id.
When submitting a Grievance Form, the inmate must include information regarding "the nature of the complaint, dates, places, and names." Id. at ¶ 9. Only one issue may be raised in each grievance. Id. If the decision on an inmate's grievance is not satisfactory to the inmate, the inmate may appeal that decision. Id. at ¶ 10. Previously, the inmate had to file such an appeal within 10 days of receiving the response to the grievance; currently, the grievance policy requires an appeal within 5 days of the inmate receiving the response to the grievance. Id. The Grievance Coordinator enters appeals into an electronic database and forwards them to the appellate authority -- typically the head of the facility. Id. at ¶ 11. The grievance process is only exhausted upon completion of all three of these steps -- Concern Form, Grievance Form, and Grievance Appeal. Id. at ¶ 12.
If a prisoner is transferred to a different facility, any concerns regarding incidents at the prior facility must be addressed by that prior facility. Affidavit of Katherine Livi (Docket No. 25-1)(Livi Affidavit) at ¶ 8. Records of concern or grievance forms filed with a prior facility are kept in a pending folder at the prisoner's current facility. Id.
Between September 16, 2004 and November 28, 2007, the ICC grievance coordinator was not required to maintain a log of processed or "completed" grievances -- i.e. those for which a reviewing authority has responded. Id. at ¶¶ 5-6. From November 28, 2007 to May 2, 2008, the ICC log ...