The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The following motions are pending before the Court in this matter:
(1) Defendants Rich Green and Adams County's Motion for Summary Judgment (Dkt. 41);
(2) Defendant Butch Gibson's Motion for Partial Summary Judgment (Dkt. 45);
(3) Defendant Gibson's Motion to Dismiss (Dkt. 47), joined in by defendants Adams County and Green (Dkt. 65);
(4) Plaintiff's Motion to Compel and for Evidentiary Sanctions (Dkt. 53); and
(5) Defendant Green and Adams County's Motion to Strike Affidavit of Dr. Terry Kupers. (Dkt. 59). Defendant Butch Gibson joined in this motion (Dkt. 63) and Green and Adams County thereafter joined Gibson's joinder. (Dkt. 65).
The Court finds that the decisional process would not be aided by oral argument, and it will resolve these motions after consideration of the parties' written submissions.
D. Idaho L. Civ. R. 7.1(d).
For the reasons set forth below, the Court will deny the motions to dismiss and grant in part and deny in part the summary judgment motions. The Court will grant in part and deny as moot in part the motion to strike. The Court will grant in part and deny in part the motion for evidentiary sanctions.
Plaintiff Autumn Pauls was incarcerated at Adams County Jail during the period September 2005 to October 2006. See Dkt. 41-2 ¶ 7. Pauls testified that during the final seven or so days before she left Adams County Jail, Officer Butch Gibson used his power and authority to coerce her into participating in sexual acts with him. Id. ¶ 33. Shortly thereafter, Pauls was transferred to a state prison in Pocatello, Idaho.
Adams County hired Gibson as a full-time detention officer in March 2006. Gibson resigned just six months later, on October 1, 2006. His last day of employment roughly coincided with Pauls' October 3, 2006 transfer to Pocatello. See Dkt. 41-2, ¶¶ 17, 26.
After Gibson and Pauls left Adams County Jail, two female inmates told a jail staff member that a former inmate had had "inappropriate contact" with Gibson. Dkt. 41-2, ¶ 24. The Adams County Sheriff's Office requested that the Idaho State Police investigate the allegations. The police investigated the matter and prepared a report, which was forwarded to the Adams County Prosecutor. Dkt. 41-2 ¶ 24-25.
During the police investigation, Pauls denied any inappropriate contact with Gibson. Dkt. 43-4, Pauls Dep., at 56-57. She further indicated that she did not report the assault to anyone at Adams County Jail. Dkt. 41-2 ¶ 30.
Around eighteen months later, in August 2008, Pauls sued defendants under 42 U.S.C. § 1983, alleging violations of her Fourth, Fifth, Eighth, and Fourteenth Amendment rights. She also alleges supplemental state-law claims. Plaintiff seeks compensatory and punitive damages. Dkt. 37.
All defendants argue that Pauls' § 1983 action should be dismissed because she failed to exhaust her administrative remedies before bringing suit.
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). 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).
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. at 1119-20. Defendants bear the burden of raising and proving the absence of exhaustion. See, e.g., Jones, 549 U.S. at 216.
2. Availability of Administrative Procedures
Defendants argue that Pauls failed to exhaust her administrative remedies because she never reported the alleged sexual assault to anyone, either while incarcerated at Adams County Jail or any time thereafter. Pauls argues that exhaustion is not required because, among other things, she was transferred from Adams County Jail to an Idaho state prison within a few days of the assaults. See Dkt. 57, at 8, 12.
The PLRA does not expressly address an inmate's obligation to grieve violations of constitutional rights in one facility when incarcerated in another, or under what circumstances the grievance procedure in one facility should be considered "available" to an inmate who has been transferred to another. The cases are not uniform on this topic, and the Ninth Circuit has yet to address the precise issue faced by this Court.*fn1
Many courts hold that the mere fact of a transfer does not affect a prisoner's obligation to exhaust his administrative remedies before filing suit. See, e.g., Napier v. Laurel County, 636 F.3d 218, 223-24 (6th Cir. 2011); Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002). Others are more lenient (particularly in the case of a transfer from a county facility to a state facility), concluding that such a transfer may render administrative remedies at the transferor facility unavailable. See Rodriguez v. Westchester County Jail Correctional Dep't, 372 F.3d 485, 488 (2d Cir. 2004); Bradley v. Washington, 441 F. Supp. 2d 97, 102-03 (D.D.C. 2006).
Under either approach, the analytical starting point is the transferor jail's regulations. Some courts hold that the regulations need not explicitly allow transferred inmates to file grievances. Instead, the key is whether they prohibit transferred inmates from using grievance procedures. See, e.g., Napier, 636 F.3d at 223; Medina-Claudio, 292 F.3d at 35 ("Nothing in the regulations explicitly prohibits Medina-Claudio from filing an administrative complaint while temporarily housed in another facility."). The Sixth Circuit, in particular, rejected any notion that the regulations must expressly provide a mechanism for filing a grievance after a transfer. Napier, 663 F.3d at 223 ("a jail's grievance policies need not explicitly provide for all possible scenarios in which a prisoner may seek to file a grievance").
The grievance procedures at Adams County Jail do not expressly prohibit or allow grievances to be filed after an inmate has transferred to another facility. They are silent on that topic. The relevant rule provides:
If you are sexually assaulted, immediately report it to a staff member or more than one staff member if necessary. You may also kite the Jail Commander or Sheriff directly or any other staff member you feel comfortable reporting this to. You may also utilize the inmate grievance procedure. Do not clean yourself, brush your teeth, wash your clothes or do anything else that could destroy evidence of the assault. The sooner you report the assault the better the chances evidence can be obtained that will help prove the assault.
Dkt. 47-2, at 13 (Inmate Handbook).
Nevertheless, Sheriff Green testified that Adams County Jail procedures were not available to inmates after they are transferred. He stated, "We don't have a policy" for reporting sexual abuse once an inmate has transferred outside the facility. See Dkt. 52-2, Green Dep., at 22.*fn2 He also testified that Adams County did not offer any assistance to Pauls after learning of the incident because Pauls had been transferred. See Dkt. 52-2, Green Dep., at p. 86, ln. 21 to p. 87, ln. 1 ("Pauls was not in our custody at the time this incident was discovered, and so therefore there was no opportunity for Adams County to offer any assistance."). More generally, Sheriff Green testified that there is no memorandum of understanding between Adams County Jail and the state prison system. See Dkt. 52-2, Green Dep., at 44-47 (answering general questions regarding how and why Adams County houses state prisoners); cf. Parmer v. Idaho Correctional Corp., 2009 WL 735646, at *4 (D. Idaho Mar. 19, 2009) (administrative procedures at transferor facility deemed "available" to prisoner who was transferred eight days after the deadline to file a grievance; inter-facility agreement allowed grievances filed at first prison to be forwarded to transferee prison).
Under this record, defendants have not shown that Adams County Jail's administrative procedures remained available to Ms. Pauls after she was transferred to state prison.
Defendants also argue that Pauls failed to exhaust her administrative remedies at Adams County Jail before she was transferred to state prison. As indicated, Pauls was transferred from the jail to prison roughly two days after the last assault and seven days after the first assault.*fn3 (Recall that Officer Gibson's last day was October 1, 2006; Pauls left the jail on October 3, 2006; and the sexual assaults occurred in seven or so days before Pauls left Adams County.) Although the inmate handbook advises inmates to "immediately" report a sexual assault, the rules do not prevent an inmate from reporting an assault after that; there is no stated deadline. Dkt. 47-2, at 13. Nor is there any evidence that Adams County Jail would have treated such a claim as time-barred. Indeed, upon learning of the alleged improprieties, Sheriff Green quickly turned the matter over to the Idaho State Police for an investigation. Further, inmates are allowed to use the grievance procedure to report a sexual assault, and there is no evidence indicating that any deadline to grieve the assault expired before Pauls was transferred. There is also no indication that Pauls was given direction on reporting incidents after the transfer.
Under these circumstances, Pauls did not have an adequate opportunity to grieve the sexual assault at Adams County Jail. See Hartry v. Suffolk County, 755 F. Supp. 2d 422, 433-34 (E.D.N.Y. 2010) (inmate did not have opportunity to grieve incident that took place two days before he was transferred to another facility; the inmate handbook allowed five days to file grievance); Bradley, 441 F. Supp. 2d at 102 (procedures at transferor facility not "available" to prisoner for July 31 and August 8 incidents where inmate was transferred on August 8); Leacock v. City of New York, 2005 WL 323723, at *5 (S.D.N.Y. Feb. 10, 2005) (inmate's transfer deprived her of available administrative remedies where incident took place one day before transfer); Baker v. Andes, 2005 WL 1140725, at *6 (E.D. Ky. 2005) (inmate transferred the same day the incident occurred not obligated to complete grievance process); cf. Berry v. Kerik, 366 F.3d 85, 88 n.3 (2d Cir. 2004) (administrative procedures available to prisoner who had months in which to pursue grievance; noting, however, that the Court had "no occasion to consider the exhaustion requirement in situations where only a brief interval elapses between the episode giving rise to the prisoner's transfer to the custody of another jurisdiction."). The Court therefore denies defendants' motion to dismiss and will turn to the pending summary judgment motions.
MOTIONS FOR SUMMARY JUDGMENT
1. Standard Applicable to Motions for Summary Judgment
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "One of the principal purposes of the summary judgment rule 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). Material facts are those which may affect the outcome of the case. See id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). In addition, the Court "must be guided by the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 255.
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. Anderson, 477 U.S. at 256-57. The non-moving party must go beyond the pleadings and show by "affidavits, or by the 'depositions, answers to interrogatories, or admissions on file'" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.
However, the Court "is not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995).
Sheriff Green and Adams County move for summary judgment on all of Pauls' federal claims. Gibson moves for summary judgment of Pauls' claims for violations of her Fourth, Fifth, and Fourteenth Amendment rights. He contends Pauls' allegations are properly analyzed under the Eighth Amendment. Dkt. 45-5, at 4. Gibson also moves for summary ...