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 (Docket No. 36) to Dismiss or for Summary Judgment.The motion is fully briefed and at issue. The Court finds that oral argument will not significantly assist the decisional process, therefore the Court will consider the motion without a hearing. For the reasons set forth below, the Court will grant the motion, which renders moot Plaintiff's Motion for Extension of Time (Docket No. 44).
Plaintiff Chris Chouinard is a prisoner in the custody of the Idaho Department of Correction (IDOC), currently incarcerated at the South Idaho Correctional Institution (SICI). According to the complaint, Plaintiff stepped in a rut or hole on July 9, 2008, while playing basketball, and fell and dislocated his shoulder. (Complaint, Docket No. 3 at 5, 7.) Plaintiff was treated at St. Alphonsus medical hospital where the emergency room doctor prescribed follow-up treatment with an orthopedic specialist. (Id.)
Plaintiff proceeded to request Correctional Medical Services (CMS) staff to have him evaluated by a specialist as prescribed. (Complaint at 11-16.) Plaintiff submitted at least six Offender Concern Forms within 14 weeks of his injury addressing his request for evaluation by an orthopedic specialist. These Offender Concern Forms were addressed to SICI Medical, Dr. Dawson, Dr. Garrett, Warden Barrier, and IDOC Director Reinke. (Complaint at 11-13.) Plaintiff was not seen by an orthopedic specialist. Plaintiff filed a grievance form on July 31, 2008, to the grievance coordinator, Jill Whittington. Plaintiff received no response to this grievance. (Complaint at 14). On August 13, 2008, Plaintiff submitted a second grievance, directed to the Health Services Administrator for CMS, Andy Machin. Machin's responded, stating that Plaintiff had a first degree separation that did not justify surgical repair; Plaintiff disagrees with this assessment. (Complaint at 15.)
Plaintiff wrote letters to CMS Administrator Dawson, and to Rona Siegert, who he believed to be employed at CMS's corporate office. (Complaint at 18-21.) Plaintiff concedes, however, that he did not file a grievance appeal until November 28, 2008. (Response, Docket No. 39 at 5.)
In this motion, Defendants argue that Plaintiff has failed to exhaust administrative remedies, therefore the matter should be dismissed.
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, and not as 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.
2. Grievance Process of the Idaho Department of Correction (IDOC)
The IDOC's grievance process consists of three stages. (Boulay Aff., Docket No. 36-3, ¶ 4.) First, any inmate with a concern must fill out an Offender Concern Form, addressed to the staff person "most directly involved with the offender's problem." (Boulay Aff., ¶ 5.) If the issue cannot be resolved informally through the use of an Offender Concern Form, the inmate must then file a Grievance Form. (Boulay Aff., ...