The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendant April Dawson's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Dkt. 15), Plaintiff Alvin Bruce Erickson's Motion for Summary Judgment (Dkt. 17), and Plaintiff's Motion for Injunctive Relief or Restraining Order (Dkt. 30).
Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.
DEFENDANT'S MOTION TO DISMISS
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prison inmate is required to exhaust all 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). "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 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. In addition, the Jones v. Bock Court cited with approval the observation that "the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation." Id. at 219 (internal citation omitted).
Where there is an "informal" and "relative[ly] simpl[e]" prison grievance system, inmates must take advantage of it before filing a civil rights complaint. Woodford v. Ngo, 548 U.S. 81, 103 (2006). "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." Id. at 85. Proper exhaustion is "defined not by the PLRA, but by the prison grievance system itself." Jones v. Bock, 549 U.S. at 218. Therefore, the "level of detail necessary in a grievance to comply with the grievance procedures" will be defined by the prison's own grievance policy. Id.
The United States Court of Appeals for the Ninth Circuit has instructed that an affirmative defense of failure to exhaust administrative remedies should be brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). 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. The Court will treat Defendant's Motion as a 12(b) motion, and consider the evidence submitted by the parties that is relevant to the exhaustion issue.
Defendant bears the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). The United States Court of Appeals for the Ninth Circuit has instructed that "pro se claims are construed liberally for purposes of the exhaustion requirement." Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (immigration context) (relying on Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002) and Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
A. Plaintiff's Factual and Procedural History
On October 25, 2008, Plaintiff received a flu shot in his upper arm or shoulder area. (Plaintiff's Statement of Disputed Facts, Dkt. 18-2, p. 1.) Plaintiff alleges that Defendants April Dawson, Andy Machin, and Catherine Fitzgerald refused to treat his worsening symptoms. On November 20, 2008, Plaintiff was rushed to the hospital as a result of the infection in his shoulder and had to have surgery the next day. (Dkt. 18-2, pp. 1-2.)
Plaintiff alleges that he spent five days in the hospital and three weeks in the infirmary, during which time he alleges he was too ill to submit an offender concern form or grievance. Plaintiff was released from the infirmary in late December 2008, after which he filed ...