The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Now pending before the Court is Defendants' Motion to Dismiss (Docket No. 24). Defendants argue that they are entitled to qualified immunity and that Harke failed to exhaust his administrative remedies. Further, Defendants contend being named for any claim that took place after Harke was transferred from the Ada County Jail to IDOC is improper and should be dismissed. Specifically, Defendants contend that it is the IDOC rules that prohibited Harke from bringing his bible with when he was transferred, not the county Defendants. Finally, Defendants argue that Harke's request for declaratory and injunctive relief are moot because he is now out of the county's custody.
Following the issuance of the Initial Review Order (Docket No. 19), the parties participated in a telephonic triage conference. A settlement conference was scheduled, but later vacated. Having reviewed the written arguments of the parties, as well as the record in this case, the Court has determined that oral argument is unnecessary, and therefore enters the following Order.
Harke filed the initial complaint in this civil rights case on January 21, 2011, alleging (1) that he was publically humiliated in front of a student tour of the jail, forced to kneel with his legs crossed for twenty minutes, and left in unreasonably cold conditions for eight hours; (2) that his religious diet of soy milk was unconstitutionally suspended as punishment for sharing food with other inmates; and (3) that his Bible was unconstitutionally confiscated, leaving him without a Bible edition that reflects his religious beliefs.
In the Initial Review Order, Plaintiff was permitted to proceed on his Fourteenth Amendment claim as it relates to the alleged incident in October 2008 when the college students toured the jail facility and (2) First Amendment and RLUIPA claims regarding the suspension of his religious diet and Bible confiscation. Plaintiff was not permitted to proceed against the Ada County or Ada County Jail. (Docket No. 6.) On November 30, 2010, Harke filed an amended complaint. At the time of the incidents giving rise to this litigation, Plaintiff resided at the Ada County Jail; thereafter, he was transferred to the Idaho Department of Corrections ("IDOC"), and later released on probation. See Notice of Change of Address (Docket No. 38).
Defendants filed a motion to dismiss, or in the alternative summary judgment, on January 28, 2011. (Docket No. 24). Defendants claim qualified immunity with regard to all of Harke's claims. Further, Defendants argue that Harke failed to exhaust his administrative remedies regarding the bible and the holding cell incidents. Defendants further argue that because of his release, Harke's requests for declaratory and injunctive relief are moot.
Federal Rule of Civil Procedure 12(b)(6) specifically gives courts the discretion to accept and consider extrinsic materials offered in connection with these motions, and to convert the motion to one for summary judgment when a party has notice that the district court may look beyond the pleadings. See Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981). On January 28, 2011, Harke was sent such a notice by the Court. Notice of Summary Judgment Rule (Docket No. 25). Accordingly, the Court will properly convert Defendant's motion to dismiss to a motion for summary judgment. See Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 1207 (9th Cir. 2007).
Harke responds to Defendants motion claiming that there are sufficient
disputes of fact standing in the way of summary judgment, that
Defendants are not entitled to qualified immunity. Objection to
Summary Dismissal (Docket Nos. 30--31). Harke further argues that
Defendants have not met their burden of proving that he failed to
exhaust his administrative remedies. Further, with regard to the
holding cell incident,
Harke claims that when an unnamed guard told him that filing a
grievance "could make your stay rough," he felt threatened with
retaliation and opted not to file such a complaint. Harke also
requests an indeterminate stay of consideration of defendants
Defendants replied on March 14, 2011, requesting the Court strike portions of Plaintiff's response. Specifically, Defendants ask that the Court strike portions of Harke's Affidavit of Disputed Facts and Amended Complaint arguing that he has not properly asserted that those statements in his affidavit or in his Amended Complaint are based upon his personal knowledge, but instead that they "are true and correct to the best of his ability, belief, and knowledge."
1. Legal Standard on Summary Judgment
One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). However, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show ...