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 is a partial Motion to Dismiss (Dkt. 25) filed by Defendant Correctional Medical Services. Also pending are the following motions filed by Plaintiff: (1) Motion for Production of Documents (Dkt. 16); (2) Motion for Appointment of Counsel (Dkt. 18); (3) Motion for Formal Service (Dkt. 20); (4) Motion to Compel (Dkt. 21); (5) Motion for Default Judgment (Dkt. 24); and (6) Motion for Extension of Time to Respond. (Dkt. 30).
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court finds the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court. See D. Idaho Local Rule 7.1(b). The Court concludes that, except for his claims relating to physical therapy, Plaintiff did not exhaust his administrative remedies and the Court will dismiss those claims not relating to physical therapy.
Plaintiff is a prisoner in the custody of the Idaho Department of Correction (IDOC), currently incarcerated at Idaho State Correctional Institution (ISCI). Plaintiff suffers from arthritis in his lower back, bone spurs on the left side of his neck, and leg and back pain from a pinched sciatic nerve. See Compl., Dkt. 3-1 at 3--5. Plaintiff filed this civil rights suit under 42 U.S.C. § 1983 against the CMS Defendants. He alleged that he received inadequate medical care in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and state law negligence. Initial Review Order at 2-4, Dkt. 7. In the Initial Review Order, Magistrate Judge Boyle allowed Plaintiff to proceed with his Eighth Amendment claims against Defendants Correctional Medical Services and Jeff Shahan, a Health Services Administrator.
On April 15, 2011, Defendants moved to dismiss all of Plaintiff's claims except for those relating to physical therapy for his back -- arguing that Plaintiff has failed to exhaust his administrative remedies. See Motion to Dismiss, Dkt. 25. On May 10, 2011, Plaintiff filed a Motion for Extension of Time to File Response (Dkt. 30), and on May 20, 2011, filed his response. See Response, Dkt. 31. On June 3, 2011, Defendants filed their reply in support of their Motion to Dismiss. See Reply, Dkt. 34. On August 2, 2011, Plaintiff filed a Sur-Reply (Supplemental Response, Dkt. 35), to which Defendants objected (Reply to Supplemental Response, Dkt. 36). All motions are now ripe for adjudication.
PLAINTIFF'S MOTION FOR EXTENSION OF TIME AND SUR-REPLY
Plaintiff's Motion for an Extension of Time (Dkt. 30) will be granted, and his Supplemental Response (Dkt. 35) will be considered in deciding this motion. Because Plaintiff is proceeding pro se, the Court will not deny him the opportunity to fully present his evidence and arguments, despite the fact that he has failed to comply with the Court's procedural rules. The Court will therefore consider all of Plaintiff's submissions in ruling on the pending motions.
MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate if a party shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party may support its position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).
1. Exhaustion Requirements
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prisoner is required to exhaust all of his 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). "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." Woodford v. Ngo, 548 U.S. 81, 88 (2006). "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 Court explained the important policy concern behind the exhaustion requirement: "allow[ing] prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.
Idaho law also requires that a prisoner exhaust his administrative remedies before filing a civil lawsuit related to the conditions of his confinement. Section 19-4206(1) of the Idaho Code provides that "[u]nless a petitioner who is a prisoner establishes to the satisfaction of the court that he is in imminent danger of serious physical injury, no . . . civil action shall be brought by [the prisoner] . . . with respect to conditions of confinement until all available administrative remedies have been exhausted." This exhaustion requirement applies to claims regarding prison medical care. See Drennon v. Idaho State Corr. Inst., 181 P.3d 524, 526, 530 (Idaho Ct. App. 2007) (affirming dismissal for failure to exhaust claims regarding, among other things, the prisoner's medical treatment). Like the exhaustion requirement in the PLRA, section 19-4206 requires that the prisoner meet procedural deadlines to properly exhaust his administrative remedies. Butters v. Valdez, 241 P.3d 7, 12 (Idaho Ct. App. 2010) (relying on federal law interpreting 42 U.S.C. § 1997e(a)).
Failure to exhaust remedies is an affirmative defense that should be brought as an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). 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; see also Ritza v. Int'l Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) ("No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims") (internal quotation marks and alteration omitted)). The defendant bears the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
If a plaintiff has failed to exhaust his administrative remedies, his claims are subject to dismissal without prejudice. See Wyatt, 315 F.3d at 1120. An inmate must exhaust his remedies prior to filing suit; exhaustion cannot be accomplished during a suit or after a suit has been filed. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (suit dismissed without prejudice where prisoner attempted to exhaust administrative remedies during pendency of suit).
2. Grievance Process of the IDOC
The IDOC's grievance process consists of three stages. First, any inmate with a concern is required to seek an informal resolution by filling out an Offender Concern Form, addressed to the staff person "most directly involved" with the inmate's issue. Affidavit of Jill Whittington ¶4--5, Dkt. 25-2. If the issue cannot be resolved informally through the use of a Concern Form, the inmate must then file a Grievance Form. Id. ¶6. The Grievance Form has to be submitted within 30 days of the incident giving rise to the grievance. Id.
When submitting a Grievance Form, the inmate must attach a copy of the Concern Form, showing the inmate's attempt to settle the issue informally. Only one issue may be raised in each grievance. Id. at ¶7. Where, as here, the grievance involves a medical issue, the Grievance Form is "routed through medical staff supervised by the Health Services Administrator, who is employed by the Health Care ...