Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Order granting motion for summary judgment, affirmed.
Todd Allan Butters appeals from the district court‟s grant of summary judgment in favor of the defendants-respondents ("defendants") on the basis that he did not exhaust his administrative remedies. We affirm.
Butters is incarcerated at the Idaho Correctional Center (ICC) under the jurisdiction of the Idaho Department of Correction (IDOC). He claims during his incarceration, on October 5, 2007, he was assaulted by other inmates due to his status as a sex offender. He also claims that a second assault occurred ten days later, on October 15. On October 30, 2007, Butters submitted two separate concern forms*fn1 to defendants Tammy McCall and Sara Fink--both referencing only the October 5 incident. Butters also asserts that he submitted a grievance form on November 10, 2007, again complaining of the October 5 incident; however, ICC claims to have no record of the grievance and the form Butters presented to the district court is not signed or dated by an ICC staff member as having been received.
On October 1, 2008, almost a year later, Butters submitted another concern form to defendant Brent Archibald, complaining of the October 5, 2007, assault, and for the first time, mentioning the October 15 assault. Archibald responded, indicating that he did not find enough evidence to determine who participated in the assault. Six days later, Butters submitted another concern form to Archibald, reiterating the same complaints as the October 1 form. Archibald responded by referencing his earlier response.
On October 20, 2008, Butters submitted a grievance appeal form, complaining of the two October 2007 assaults and mentioning that he had filled out concern forms in both October 2007 and October 2008. He did not mention submitting a November 2007 grievance form. The ICC Grievance Coordinator, Jennifer Gardner, responded to the grievance appeal, indicating that it had no merit as it was untimely, since the alleged assaults had occurred over a year earlier. On October 22, Butters submitted a second grievance appeal form, reiterating his contentions, which was again denied as being untimely.
On April 10, 2009, Butters filed a civil action against various employees of ICC (defendants), claiming they had failed to prevent him from being harmed and had not taken action to alleviate the future risk of harm he faces as the result of his status as a sex offender.
The defendants moved for summary judgment, which the district court granted on the ground that Butters had failed to exhaust his administrative remedies before filing his civil action. Butters filed a motion to reconsider, which the court also denied. Butters now appeals the grant of the defendants‟ motion for summary judgment on the basis that he did not exhaust his administrative remedies.
Butters contends that the district court erred in granting summary judgment in favor of the defendants, specifically asserting that the court erred in determining that he had failed to fully exhaust his administrative remedies. Defendants respond that the district court correctly determined that Butters failed to exhaust his administrative remedies prior to filing his civil action because he failed to submit a timely concern or grievance form for either the October 5 or October 15 assaults as required by ICC‟s grievance policy.
We first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994).
The party moving for summary judgment initially carries the burden to establish that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden may be met by establishing the absence of evidence on an element that the nonmoving party will be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of evidence may be established either by an affirmative showing with the moving party‟s own evidence or by a review of all the nonmoving party‟s evidence and the contention that such proof of an element is lacking. Heath v. Honker's Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then shifts to the party opposing the motion to show, via further depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874, 876 P.2d at 156.
The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), which is identical in all relevant aspects to I.R.C.P. 56(c), stated:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party‟s case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and reasoning of Celotex has been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479.
The interpretation of a statute is an issue of law over which we exercise free review. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 358,986 P.2d 1019, 1024 (Ct. App. 1999). When interpreting a statute, we will construe the statute as a whole to give effect to the legislative intent. George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d 1385, 1387-88 (1990); Corder, 133 Idaho at 358,986 P.2d at 1024. The plain meaning of a statute will prevail unless clearly expressed legislative intent is contrary or ...