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Patrick Smrz v. Katie Hall

February 23, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

lead case



Idaho state prisoners Patrick Smrz and Roy Burstein are the remaining plaintiffs in this consolidated prisoner civil rights action. Several motions are now pending before the Court, including Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies (Dkt. 214), Defendants' Motion for Summary Judgment (Dkt. 218), and Plaintiffs' Motion for Default Judgment and/or Summary Judgment Against Defendants (Dkt. 217). In the interests of avoiding further delay, the Court shall resolve these matters on the parties' briefing and the record. D. Idaho L. Civil R. 7.1(d).

For the reasons set forth below, Plaintiff Burstein's remaining claims will be dismissed for failure to exhaust administrative remedies. Plaintiff Smrz's claim that Defendants refused to comply with medically prescribed diets will also be dismissed for lack of exhaustion. Additionally, though Plaintiff Smrz properly exhausted a claim that Defendants failed to provide him with adequate food to maintain his health, there are no genuine issues of material fact as to that claim and Defendants are entitled to summary judgment.


Dennis Orr and Patrick Smrz are the inmates at the Idaho State Correctional Institution (ISCI) who filed the original Complaint, raising numerous claims regarding the conditions of their confinement at ISCI. Gregory Nelson was later added as a third plaintiff. (Dkt. 62.)

The Court allowed Plaintiffs to proceed with the following claims: (1) IDOC officials and employees violated Plaintiffs' rights under the Eighth Amendment by (a) preparing and serving food under unsanitary conditions, and by (b) failing to provide food in sufficient quantity and with sufficient nutritional value to preserve the health of the inmates; (2) Dr. April Dawson of Correctional Medical Services (CMS) arbitrarily cancelled medical diets for inmates, and IDOC employees did not comply with medical diet directives; and (3) certain IDOC Defendants violated their fiduciary duties in using money that had been deposited in an "Inmate Management Fund." (Dkt. 26.)

The Court dismissed all other claims and denied Plaintiffs' request for class certification. (Dkt. 26.) The Court also ordered counsel for the IDOC Defendants and counsel for Dr. Dawson to conduct an investigation and to submit a joint "Martinez report" in lieu of filing responsive pleadings or motions.*fn1 (Dkt. 26, pp. 8, 19.) Defendants complied with the Court's Order and filed their report, which described the food service system at ISCI , the handling of medical diet memos, and the structure of the Inmate Management Fund. (Dkts. 43, 44, and 45.) After the report was filed, Dennis Orr was permitted to withdraw as a plaintiff. (Dkt. 62.)

Inmate Roy Burstein then filed his own Complaint, which the Court consolidated with the present action. (Dkt. 55.) In his Complaint, Plaintiff Burstein alleged that Dr. Dawson prevented him from receiving a medical diet that had been prescribed by a different physician. (Id.) He also claimed that Warden Randy Blades and IDOC food service managers interfered with the medical diet he had been prescribed, worsening his medical conditions. (Id.)

In its February 20, 2009 Memorandum Decision and Order filed, the Court granted Defendant Dawson's Motion for Summary Judgment and also dismissed Plaintiffs' claim related to the Inmate Management Fund, leaving only the "food claims" to be resolved. (Dkt. 155, p. 24.) The Court determined that an expert could assist the parties and the Court in assessing the food claims, and it appointed Sue Stillman-Linja, a registered dietician, as a neutral expert. (Dkt. 190.) Ms. Stillman-Linja completed her investigation and submitted a report, concluding in her opinion that the food that is served on the various meal plans at ISCI is nutritionally adequate to the health of the inmates, and that it is served under sanitary conditions. (Dkt. 195, pp. 4, 9-11.) After her report was filed, Plaintiff Nelson stipulated with Defendants that all of his claims could be dismissed with prejudice. (Dkt. 198.) Only Plaintiffs Smrz and Burstein remain as plaintiffs.

Given the protracted nature of the initial stages of this case, the IDOC Defendants have only recently filed their Answers. (Dkts. 212, 213.) Defendants have also filed two dispositive motions: a Motion to Dismiss, based on the alleged failure of Plaintiffs Burstein and Smrz to exhaust administrative remedies before filing their Complaints, and a Motion for Summary Judgment. (Dkts. 214, 218.) Plaintiffs have submitted their own dispositive motion, which they have labeled as a "Motion for Default Judgment and/or Summary Judgment against Defendants." (Dkt. 217.)

The Court has reviewed these matters and is now prepared to issue its ruling.


1. The Exhaustion Requirement

The Prison Litigation Reform Act (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.

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 defendants bear the burden of raising and proving the absence of exhaustion, Brown, 422 F.3d at 936-37, and the defense may be raised by motion after an answer is filed, so long as the defense has been pled in the answer. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) ("The inclusion of the defense in an answer is sufficient to preserve the defense.").

In resolving a motion to dismiss on exhaustion grounds, the district court may consider matters outside of the pleadings and can resolve ...

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