The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this prisoner civil rights action are various motions filed by the parties that are ripe for adjudication. Having reviewed the arguments of the parties, as well as the record in this case, the Court enters the following Order.
Plaintiffs Andrew J.J. Wolf, Jimmy T. Glass, Patrick K. Knight, Dwayne N. Banks, and Ronald D. Lewis (Plaintiffs) were permitted to proceed only on the following claims in the First Amended Complaint: the second cause of action (inadequate ventilation), the third cause of action (inadequate plumbing), the fourth cause of action (inadequate living space), the fifth cause of action (inadequate dayroom space), the sixth cause of action (inadequate staffing), and the eighth cause of action (inadequate recreation). Plaintiffs were permitted to proceed only against the following Defendants: Brent Reinke, John Doe (current warden of Idaho Correctional Center), Daniel Melody, Frederick Perry, and Shane Jepsen. (See Order of September 30, 2010, Dkt. 19.)
REVIEW OF PENDING MOTIONS
1. Patrick Knight's Motion for Voluntary Dismissal (Dkt. 21) and Andrew Wolf's Motion to Take Judicial Notice (Dkt. 23)
Patrick Knight requests that the Court voluntarily dismiss his claims and that he not be assessed part of the filing fee. Good cause appearing, the Court will grant the motion and dismiss Mr. Knight's claims without prejudice. The Court will not assess Mr. Knight a portion of the filing fee because a fee order has not yet been issued, but will divide the fee among the remaining Plaintiffs who wish to continue.
Plaintiff Andrew Wolf requests that the Court take judicial notice of the fact that the remaining Plaintiffs intend to continue the action. Mr. Wolf's motion will be granted to the extent that it acknowledges that Mr. Knight wishes to withdraw and not pay a portion of the filing and the remainder of the Plaintiffs wish to proceed and pay the filing fee among themselves ($87.50 each).
2. Plaintiffs' Motion for Extension of Time to File Supplemental First Amendment Complaint (Dkt. 26); Plaintiffs' Motion to Reconsider Order (Dkt. 31); and Defendants' Motion to Strike Plaintiffs' Reply to Response to Motion to Amend/Correct Complaint (Dkt. 58)
As to Plaintiffs' claims for declaratory and injunctive relief, the Court previously ordered Plaintiffs to substitute the name of the current warden for the former warden by filing a "Supplement to the First Amended Complaint" within thirty (30) days. (Dkt. 19.) Plaintiffs allege that the restrictions imposed upon inmates caused them to be unable to file a supplement in time (they wished to file a motion to reconsider and a request to file a second amended complaint rather than simply add the name of the new warden). Good cause appearing, the Court will grant the requested extension of time. Because Plaintiffs are proceeding pro se, the Court will not strike their reply and affidavit, but has considered them as additional argument.
Plaintiffs request that the Court reconsider its previous Order limiting their causes of action and defendants. First, Plaintiffs seek additional clarification on whether they can proceed on their supplemental state-law causes of action. Plaintiffs may proceed on only those state-law claims that correspond to the federal claims upon which they have been permitted to proceed, to the extent that such state-law claims are set forth in the complaint and permitted by state law. The Court generally leaves it up to Defendants to set forth their defenses against any state-law causes of action, rather than reviewing them in detail in the Initial Review Order.
The Court will not permit Plaintiffs to proceed on any of the policy-based claims at this time because Plaintiffs have failed to provide any factual allegations showing that adding extra beds or initiating a lock-down policy was motivated by, or implemented for, an underlying purpose of violating inmates' civil rights. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Court dismissed a policy-based claim for failure to state plausible facts suggesting that the named Defendants "purposely adopted a policy of classifying post-September-11 detainees as 'of high interest' because of their race, religion, or national origin." Id. at 1952. The Court reasoned: "All [the complaint] plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity." Id.
In particular, the Iqbal Court held that the following allegations were insufficient to state a policy-based claim:
Respondent pleads that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest."The complaint alleges that Ashcroft was the "principal architect" of this invidious policy, and that Mueller was "instrumental" in adopting and executing it. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, 550 U.S. at 555, 127 S.Ct. 1955, namely, that petitioners adopted a policy "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Feeney, 442 U.S. at 279, 99 S.Ct. 2282.
Id. at 1951 (internal record citations omitted).
While Plaintiffs cannot proceed at this time, they may request amendment at the end of the discovery period by filing a motion to amend and a proposed amended complaint if they have obtained sufficient facts to support such an allegation.
The Court will substitute Tim Wengler, the new warden of ICC, for former Warden Valdez, because the inmates seek declaratory and injunctive relief only against the Warden of ICC, without the need of a second amended complaint. Plaintiffs have not made an adequate argument showing why the second amended complaint is necessary. The Court will not permit Plaintiffs to proceed on additional causes of action against additional Defendants at this time, and the proposed new plaintiff, Kenneth Workman, has now indicated he is not interested in pursuing his claims.
3. Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies (Dkt. 32); Plaintiffs' Motion for Extension of Time to Respond to Motion to Dismiss (Dkt. 38); and Plaintiffs' Motion to Supplement Response to Motion to Dismiss (Dkt. 53)
A. Standard of Law Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prisoner 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 Jones v. Bock Court noted 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, prisoners 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.
In Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the United States Court of Appeals for the Ninth Circuit clarified that if a plaintiff wishes to add new claims to an existing lawsuit by raising them in an amended or supplemental complaint, the district court is to look to the timing of the submission of the claims to determine whether the newly-added claims were timely exhausted. The Rhodes Court held that "a prisoner must exhaust his administrative remedies for the claims contained within his complaint before that complaint is tendered to the district court." Id. at 1005. Particularly, the Court agreed that inmate Rhodes correctly argued that "the new claims in his second amended complaint should not have been dismissed, because they were properly exhausted before he tendered his second amended complaint to the district court for filing." Id. (emphasis in original).*fn2
Rhodes does not overrule United State Supreme Court precedent requiring exhaustion before a claim is brought in federal court. Rather, construed together, these cases dictate that, if a claim was included in the original complaint before the claim was exhausted, the claim cannot be exhausted during the pendency of the lawsuit and pursued in an amended complaint, but, rather, such claims must be dismissed without prejudice. To permit Rhodes to override § 1997e(a)'s exhaustion-first rule would contradict the letter and spirit of Woodford v. Ngo, 548 U.S. 81, 103 (2006), which held that "proper" exhaustion of administrative remedies under § 1997e(a) means 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 (emphasis added). Such a rule would also encourage inmates to disregard the exhaustion-first rule, resulting in the thwarting of the purpose of administrative exhaustion--to resolve problems without filing suit.
Failure to exhaust administrative remedies is an affirmative defense that 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. Defendants bear 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 ...