The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this prisoner civil rights matter is Defendants' Motion to Dismiss Second Amended Complaint. (Dkt. 73.) Defendants argue that the Court must dismiss the claims brought by Plaintiffs Piña, Rocha, Ibarra, Kelly, Barrios, and Enzminger because they failed to exhaust administrative remedies properly, as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act ("PLRA"). (Dkt. 74, p. 1.) Defendants do not seek to dismiss Plaintiff Riggs's individual claims for monetary damages.
After considering the parties' written and oral arguments, and the relevant portions of the record, the Court will grant Defendants' Motion in part and deny it in part. The Court concludes that (1) Plaintiffs Ibarra and Barrios may remain as representative plaintiffs, at least temporarily; (2) each plaintiff must have exhausted available administrative remedies before he joined the case and raised claims against Defendants, but not before the date that Riggs filed the original Complaint; and (3) Defendants have carried their burden to prove that these six plaintiffs failed to properly exhaust claims that they were denied adequate post-assault medical care (Third Claim for Relief) and that Rocha did not exhaust any claim for relief, but Defendants have not established that the "failure to protect" claims raised by Ibarra, Piña, Barrios, Kelly, and Enzminger should be dismissed for lack of exhaustion (Second Claim for Relief).
Marlin Riggs initiated this lawsuit by filing a pro se Complaint on January 12, 2009, alleging that prison employees and officials at the Idaho Correctional Center ("ICC") had failed to protect him from violence and were deliberately indifferent to his serious medical needs, in violation of his Eighth and Fourteenth Amendment rights. (Dkt. 3.) The Court first consolidated but later severed other cases raising similar claims, and then appointed counsel to represent Riggs. (Dkt. 11.)
With the assistance of counsel, Riggs filed an Amended Complaint on March 11, 2010, adding inmates Ibarra, Piña, Rocha, Kelly, and Barrios as new plaintiffs. (Dkt. 16.)
In the amended pleading, all plaintiffs alleged that Defendants had failed to protect them from assault and then concealed pervasive violence at ICC. Riggs sued on his own behalf and requested monetary damages, while the new plaintiffs proceeded both individually and on behalf of all similarly situated inmates at ICC, seeking declaratory and injunctive relief. (Dkt. 16, pp. 78-80.)
On June 30, 2010, the Court gave Plaintiffs leave to amend the Complaint a second time. (Dkt. 70.) In the Second Amended Complaint, a seventh plaintiff was joined, Randy Enzminger, who raised the same claims and sought the same declaratory and injunctive relief as the five other purported class representatives.*fn1 (Dkt. 71.)
Defendants now seek dismissal of the claims brought by all plaintiffs except Riggs.
The Court will first address Defendants' argument that two plaintiffs, Ibarra and Barrios, lack standing to continue as potential class representatives. Defendants assert that because Ibarra has been released on parole, his claims for declaratory and injunctive relief are now moot. (Dkt. 74, p. 10.) In their Reply, Defendants also include Barrios in their request, noting that he has been transferred to another facility. (Dkt. 85, p. 10.) Plaintiffs do not dispute that the individual claims of Ibarra and Barrios are moot, but they assert that these plaintiffs can continue as potential class representatives, at least temporarily.
To be justiciable, a plaintiff's claim must not have become moot during the litigation. American Civil Liberties Union v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008). As a general rule, a prisoner's transfer or release will moot all personal claims for injunctive relief because the prisoner is no longer subject to the allegedly unconstitutional policy. Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
Prisoner class action litigation can present unique mootness issues, given the possibility that a named plaintiff seeking injunctive relief on behalf of a putative class will be released or transferred. The Supreme Court has recognized an exception to mootness when a claim with class-wide implications is so inherently transitory that the case may become moot before the court has a reasonable time to rule on a motion for certification. Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). To ensure that the merits will not evade judicial review, the district court's decision on the certification issue will "relate back" to the filing of the complaint when the individual claims were not moot. See McLaughlin, 500 U.S. at 52; see also Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997) (if claims are inherently transitory, then "action qualifies for an exception to mootness even if there is no indication that [plaintiff] or other current class members may again be subject to the acts that gave rise to the claims.").
This Court finds the circumstances in the present case to fall within the inherently transitory category. In the short time since the Amended Complaint was filed, two named plaintiffs have already been released or moved from ICC. In light of the shifting nature of an inmate population with varying sentences in a state with several prisons, there is a danger that additional representative plaintiffs may also be released or transferred from ICC at any time.
Moreover, in United States Parole Comm'n v. Geraghty, 445 U.S. 388, 402 (1980), the Supreme Court concluded that a named plaintiff in a potential class action who had standing at the inception of the case continues to have a personal stake in the outcome of the class certification issue apart from his legal interest in the substantive claim for relief. Id. at 403. Here, Ibarra and Barrios had standing when they entered the case and they retain a personal stake in the certification issue despite the fact that their individual claims have since become moot. Cf. Rosetti v. Shalala, 12 F.3d 1216, 1232 (3d Cir. 1993) (holding that a proposed class representative has a stake in the certification issue at the time he moves for certification, regardless whether his or her personal claim is later mooted).
Accordingly, Ibarra and Barrios may continue as representative plaintiffs at this time.
Defendants next contend that Ibarra, Piña, Rocha, Kelly, Barrios and Enzminger did not properly exhausted their available administrative remedies, as required by the PLRA.
The Court is not convinced by Defendants' argument that each plaintiff must have exhausted all administrative remedies by the date that Riggs filed the original Complaint. In addition, while the Court agrees that none of these plaintiffs exhausted a claim that they were deprived of adequate post-assault medical care, Defendants have failed to carry their burden to show that Ibarra, Piña, Barrios, Kelly, or Enzminger did not exhaust available remedies for the failure to protect claims in this case. Only Rocha shall be dismissed as a named plaintiff based on his failure to exhaust administrative remedies for all claims.
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.
Defendants first contend that the claims of the six representative plaintiffs must be dismissed because the events on which their claims are based occurred after Riggs filed the original Complaint on January 12, 2009. According to Defendants, because these plaintiffs did not (and could not) exhaust administrative remedies before that date, § 1997e(a) prohibits them from joining this lawsuit, even if they properly exhausted their claims before they entered the case. (Dkt. 74, pp. 6-7.) Plaintiffs counter that a prisoner retains the right to seek an amendment to his complaint to add new parties and claims, in accordance with Rule 15 of the Federal Rules of Civil Procedure, as long as all claims are exhausted before they are brought into the case. The Court is persuaded that ...