The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Pending before the Court in this prisoner civil rights matter is Plaintiff's Motion for Summary Judgment (Dkt. 46) and Defendants' Motion for Summary Judgment (Dkt. 47). After considering the parties' written arguments, and the relevant portions of the record, the Court will deny Plaintiff's Motion for Summary Judgment against Defendant Underwood on Counts I and II and grant in part and deny in part Defendants' Motion for Summary Judgment.
Nora Harrison Barkey ("Plaintiff") initiated this lawsuit by filing a Prisoner Civil Rights Complaint on October 30, 2007 alleging that employees of the Idaho Department of Corrections ("IDOC") and the Pocatello Women's Correctional Center ("PWCC") violated her First, Fourth and Eighth Amendment rights. (Complaint, Dkt. 3.) Plaintiff filed an Amended Complaint (Dkt. 8) on April 18, 2008 to add claims for retaliation and with the intention of adding Brian Underwood as a Defendant.
An initial review of Plaintiff's claims was completed pursuant to 28 U.S.C. §1915, and an Initial Review Order was entered on May 16, 2008. The Initial Review Order allowed Plaintiff to proceed on her Eighth Amendment claim alleging that Plaintiff was subjected to "sexual misconduct" by Correctional Officer Melin and that Director Reinke was unresponsive to complaints about the sexual misconduct. Plaintiff was also allowed to proceed on her claim that she suffered retaliation. Plaintiff was not allowed to proceed on her Fourth Amendment claim alleging that only female correctional officers should be allowed to perform body searches on female inmates.
The Court granted Plaintiff's motion to appoint counsel on May 18, 2009. (Dkt. 26.) With the assistance of counsel, Plaintiff moved and was allowed to file a Second Amended Prisoner Civil Rights Complaint (Dkt. 34) on August 28, 2009. The Second Amended Complaint was intended to clarify Plaintiff's allegations in the first two complaints and include Brian Underwood as a Defendant. Plaintiff's Second Amended Complaint alleges violations of her First, Fourth, Eighth, and Fourteenth Amendment Rights.
The Plaintiff alleges the following facts in support of her claims. Between May 2006 until March 2007 Plaintiff was incarcerated at the East Boise Community Work Center ("EBCWC"), a minimum custody level facility which allowed inmates to maintain employment off site. Plaintiff alleges that on or about March 31, 2007, Defendant James Melin, while on duty, sexually assaulted Plaintiff under the pretext of a cross gender body search. Defendants contend the search was performed because Defendant Melin saw Plaintiff place an object in her bra prior to entering the facility. After the alleged sexual assault, Plaintiff contends that Defendant Melin took other inappropriate actions which forced her to flee from EBCWC. First, Plaintiff alleges Defendant Melin wrongfully had Plaintiff strip searched by a female officer in order to retrieve the object suspected to be in Plaintiff's bra. The Court notes that the female officer performing the strip search did find and confiscate money that fell out of Plaintiff's bra, however, the amount of money confiscated is disputed. Further, Plaintiff alleges that Defendant Melin inappropriately placed her on room restriction, lied about the amount of money found in her bra in order to file a Disciplinary Offense Report ("DOR"), and threatened to rape her on the morning of April 1, 2007. Plaintiff alleges that based on these incidents, she decided not to return to the EBCWC after work the next day. On April 11, 2010, Plaintiff was located by the authorities and was taken back into custody.
At the time of Plaintiff's escape and in compliance with IDOC policy, Plaintiffs inmate trust account was suspended. The suspension of her account was not lifted until action regarding her DOR was complete. Plaintiff alleges that the suspension was lifted February 25, 2008. When the suspension was lifted, over $3000 that was in her account at the time of her escape was confiscated pursuant to IDOC policy. Further, Plaintiff contends that while her DOR was pending, she was repeatedly and unnecessarily transferred between Ada County Jail and the Pocatello Women's Correctional Center ("PWCC") and wrongfully held in administrative segregation.
Plaintiff and Defendants filed cross motions for summary judgment on February 26, 2010. (Dkt. Nos. 46, 47). Defendants are seeking summary judgment on "a number" of Plaintiffs's claims based on Plaintiff's alleged failure to exhaust administrative remedies and on Plaintiffs inability to demonstrate violations of any constitutionally protected right or that Defendants' personally participated in the alleged violations. Plaintiff moved for summary judgment against Defendant Underwood on two claims: that the seizure of funds from her inmate trust account violated her Fourth Amendment rights and the wrongful transfers between PWCC and Ada County Jail as well as the seizure of funds constituted retaliation under the First Amendment. Because administrative exhaustion is a prerequisite to bringing a lawsuit under the Prison Litigation Reform Act ("PLRA"), the Court will address Defendants' exhaustion argument first and then the merits of the parties cross motions for summary judgment.
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title ... until such administrative remedies as are available are exhausted." 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). This requirement is intended to give "prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.
Proper exhaustion 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). "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion," Jones, 549 U.S. at 218.
By its plain terms, however, the PLRA requires prisoners to exhaust only those avenues of relief that are "available" to them. 42 U.S.C. § 1997a(e). When prison officials prevent a prisoner from using the correct channels to route a complaint, an administrative remedy that may be theoretically in place will not be available to the prisoner as a practical matter, and the failure to adhere to technical requirements will be excused. Nuñez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Confusing or contradictory information given to a prisoner is also pertinent "because it informs [the] determination of whether relief was, as a practical matter, 'available.'" Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
A claim that a prisoner failed to exhaust administrative remedies is an affirmative defense that should be brought as an unenumerated motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). The district court may consider matters outside of the pleadings and can resolve disputed issues of fact, if necessary. Id. Defendants bear the burden of raising and proving the absence of exhaustion. Brown, 422 F.3d at 936-37. Further, when a prisoner has not exhausted administrative remedies as to any claim before filing suit, the complaint must be dismissed and cannot be cured by an amendment after remedies have been exhausted. See, e.g., McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). Such a rule is consistent with the purpose of § 1997e(a), which is "to reduce the quantity and improve the quality of prisoner suits .... [by] afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
B. Idaho Department of Correction's Grievance Procedures
Ordinarily, a prisoner at the Pocatello Women's Correctional Facility ("PWCC") must complete the Idaho Department of Corrections Grievance Process which has consisted, despite multiple minor changes, of the following three steps: 1) the offender must seek an informal resolution of the matter by completing an Offender Concern Form; 2) the offender must complete a Grievance Form if informal resolution cannot be reached; and 3) the offender must file a Grievance Appeal. (Davis Aff. ¶4, Dkt. 47-9.)
The prisoner begins this process by routing the concern form to the staff member most capable of addressing the problem. (Id. at ¶ 5.) If the issue is not resolved, or the staff member identified does not respond within seven days, the prisoner must then complete a grievance form, attach a copy of the concern form, and file the grievance within thirty days of the incident, however, an extension of time may be granted by the reviewing authority.*fn1 (Id. at ¶6.) The "grievance coordinator" at the prison will route a properly completed grievance to the appropriate staff member, who must respond within 10 days. (Id. at ¶ 6.)
After the staff member responds, the coordinator forwards the grievance to the "reviewing authority," usually the deputy warden, who reviews the prisoner's complaint and the staff member's response and issues a decision. (Id. at ¶ 6.) If the prisoner is dissatisfied with the reviewing authority's decision, he may then appeal within 5 days to the "appellate authority," which is usually the facility head. (Id. at ¶ 7.) The appellate authority has fourteen days to respond to the Grievance Appeal and return it to the grievance coordinator. (Id. at ¶7.) Once the appellate authority has issued its decision, the grievance is then routed back to the inmate, thus concluding the administrative review process. (Id. at ¶ 15.)
Defendant alleges that although Plaintiff was aware of the grievance process, she failed to complete this process because she did not file a single grievance or grievance appeal with respect to any of the issues raised in her Second Amended Complaint. In response, Plaintiff contends that Defendants have not met their burden to demonstrate that Plaintiff did not exhaust her administrative remedies. Further, Plaintiff argues that the evidence produced by Defendants during discovery contradicts Defendants' exhaustion argument because it demonstrates that Plaintiff contacted personnel at every level of the IDOC to resolve her issues and was denied relief. However, prior to addressing the merits of Defendants's exhaustion claims, the Court will first address Plaintiff's argument that Defendants should not be allowed to rely on the Affidavit of Michelle Davis (Dkt. 47-9) because she was never identified as a witness during discovery.
C. Affidavit of Michelle Davis
Michelle Davis is the Grievance Coordinator for the PWCC and is therefore personally familiar with the IDOC Grievance Process. Ms. Davis' affidavit identifies the steps and the time frames involved in the IDOC Grievance Process. Further, Ms. Davis testified that the PWCC maintains a database that includes all of the processed grievances filed prior to November of 2007 and all of the grievances and grievance appeals filed since that date. After searching the database and reviewing her files, Ms. Davis found that Plaintiff had submitted eleven grievance forms, seven in 2009 and four in 2008 which she attached to her Affidavit. Ms. Davis only found three grievance appeal forms for grievances filed in 2009, and found no indication that Plaintiff completed the grievance process with respect to any grievance forms filed in 2007 or 2008. These forms were also attached to Ms. Davis' Affidavit. (Davis Aff., Dkt. 47-9.)
Plaintiff contests the Court's reliance on Ms. Davis' Affidavit because Ms. Davis was not identified as a witness during discovery and the Plaintiff has not had the opportunity to develop the record with respect to the assertions in Ms. Davis' Affidavit.*fn2
In response, Defendants contend that Plaintiff never introduced any interrogatory that sought Ms. Davis' identify and she was not included in initial disclosures because she was unknown to defense counsel at that time. Further, Defendants argue that Ms. Davis' Affidavit does not possess any personal information as to any of Plaintiff's allegations and her testimony was used solely to introduce IDOC policies regarding exhaustion and the documents contained in her grievance log. Finally, Defendants contend that Plaintiff has not sufficiently discredited the foundation of Ms. Davis' Affidavit as would be required under a motion to strike or moved for an ...